Latest Breaking News On - Christy thompson - Page 1 : vimarsana.com
>> more independent, impartial judiciary. you know, they are largely a historical vestige of their time. >> tracy? >> i just agree largely what people have to say. every selection method impacts judges' decisions. elections were adopted, as matt noted, to try to check the perceived abuse of the appointment process. i don't think it was merely perceived, the evidence is pretty strong on that. but in terms of the specific question of why don't voters then change the method of selection, what's interesting is the florida case since that's the case before us is they did change the med of selection -- the method of selection more appellate judges right? but not with trial judges, not with the judges that they think of as the judges in their lives. and i think that's pretty entering, to try to understand -- pretty interesting, to try to understand if voters feel that this tension between accountability and impartiality is one that they would like to resolve when the judges are closer to where they are. what's disappointing, of course, is that judicial races are low salience races. individual voters know very little they're least likely to vote in judicial races, so i think in terms of answering the question why do we retain judicial elections i think it's because of the ideal of accountability and the challenge is that, of course we don't really have that in the races generally. but i certainly agree that there's no perfect or system and no perfect judges even if we had a perfect system. >> anything you want to -- yes, sir. give us a sec. [laughter] >> hi my name is -- [inaudible] i'm with transparency international usa. i had a comment and a question. i began my legal career as a state court prosecutor in miami florida, and i think it sort of goes to what andrew said earlier. my experience was i don't really feel it makes a huge difference whether or not the judge directly asks or whether or not there's a campaign committee. the practice at least in miami which is the largest, most populace jurisdiction in florida, is that the legal community is still fairly small, and campaign committees would organize, you know fundraisers, often times at bar, and all of us prosecutors who made $30 or $40,000 a year would come for the free beer and the defense attorneys would come to contribute. i think on the criminal side of things where i was practicing, and this is my question for tracey, you had mentioned that you see particularly closer to elections judges sort of become more law and order focused. and yet the prosecutors are not the ones donating the money. and so i sort of have a question as to how that actually works, because we don't have any money to contribute. it's the defense bar that has a fair amount of money. so i can see sort of on the civil side where, certainly, money may play a larger role. but on the criminal side i sort of have a hard time seeing how those studies would actually validate the suggestion that the campaign contributions do have an impact. but, you know, as a more general matter, it would seem to me that there's very little actual distinction, especially sort of at county levels where everyone knows everyone and a judge can look at the list of who's contributed, and it doesn't really matter whether or not it's the campaign committee or the judge that asks the judge is going to know at the end of the day who his friends are and who are not his friends. so i'm curious begun sort of why, you know -- again sort of why, you know, there has not been a move -- florida says we passed these laws to solve this problem, but it doesn't really seem like this particular law solves the problem. and i think especially when you think about the massey case i think there was a trip to south of france involved in that one too. the issue seems to be not so much the direct solicitation, but the campaign contributions. >> the criminal defense or the criminal case findings are not as direct an effect as the effect in cases involving law firms and say, tort suits, mass litigation businesses and business disputes between individuals or businesses as defendants in tort cases. in those cases the hypothesis is and what they're testing is a direct effect. a business gives, a law firm gives, it does better in court subsequently, or similar businesses do better in court subsequently. the theory behind the effect of criminal rights is instead that if a business wants to oppose you or a law firm wants to oppose your re-election, typically the best argument to the public is not -- especially if you're a plaintiff lawyer favors plaintiff's lawyers. the much better argument is you're not law and order. so the funding, especially in the post-citizens united world the funding behind campaigns to unseat judges is funding from entities typically indifferent to criminal cases but they recognize that the best ad is about a criminal case. and so that's the theory behind it because you're certainly right. prosecutors are not substantial donors to judges and many states are not allowed to donate, in fact, to judicial campaigns. >> i just want to add something. one of my colleagues at the marshall project christy thompson, just did a long piece last month on this very issue judicial elections and the campaign ads that rise up against them. and, you know, you're dealing with one of the most cynical components of campaigns and especially judicial campaigns. and the idea that these business interests who care about tort reform or who care about, you know jurisdiction or who care about liability and other issues aren't going to come to consumers of news and television and papers and say, you know, let's band together and, you know reduce the liability. they're going to come and say you know, this judge is soft on child sex offenders. and, you know, we -- those ads are more and more pervasive even as there is this countermovement in this country, i think, to be a little bit more sensible about crime and the dramatization of crime. i think that's going in one direction, these ads are going in the other direction and obviously, they're effective because they're pervasive in all of these states. and if they weren't working, you know, they wouldn't be happening. >> as to why states are barring only solicitation by the candidate rather than by these committees, correct me if i'm wrong, but i think this is the aba code proposal, and i think it reflects an understanding of the to first amendment concerns would be far more severe if they were that broad a ban. >> yes sir. we're making it increasingly difficult for mr. microphone man to -- pretty soon it's going to be at the ceiling. [laughter] >> thank you bill -- [inaudible] from the aba. i'm drawing this question from memory rather than recent review, so i might be totally off base but if i recall judge litman in new york on a recusal issue put in a threshold for recusal. has that gone into effect and have any of you looked at it? and how is that working? >> yes. it's slightly different. it's not actually recusal, it is -- it takes place through the assignment system. so if a judge has received more than $2500 contribution, and the amount differs slightly based on the level of judges. we elect our trial judges and our intermediate grade appellate judges -- intermediate appellate judges. a high court or judge is appointed. the administrative offices of the court automatically assigns the case to a different judge, and the judge never even knows they were potentially getting that case. we are in the process of doing some research on various recusal regimes and trying to assess their effectiveness, but i think it's a very interesting system. it completely removes the discretionary element from the challenged judge. it takes away any sort of, you know appearance that a judge is a judge this their own case -- in their own case, and we hi it's a very interesting system. >> [inaudible] to contribute heavily to judges you don't want on your cases. [laughter] >> one of the issues with any recusal practice is there is the potential for gamesmanship and it's one of the reasons why it is so effective to design an effective regime. >> it gives the option by keeps the cases out, so that's an option as well. >> i have an easy one for you. >> thanks so much for putting this event together. my name's michael i'm a reporter at the center for republic integrity here in washington, d.c. and in terms of the notion of candidates doing the direct solicitation versus their campaigns, judicial races are not something i'm quite as familiar at as, say federal candidates running for office. so i was curious how professional are, you know we've got these 39 states that have different things, you know? in all of these cases, are we assuming that there is a judge, there's a campaign manager, there's a treasurer? or are in some cases some of these races really just sort of one person operations and what's the practical difference versus the campaign making a solicitation versus the judge making this ask? >> while you guys are thinking of a response to that go online and look at some of the web sites. i mean, for example some of the justices in texas some of the web sites that they have up are as professional as -- they're not one-person shows. i haven't done any empirical studies, but from what i've seen not just in texas, but elsewhere they're often very sophisticated operations because there's more money available. i mean, it's an investment right? if you're a judge and you want to stay a judge or if you're a judicial candidate and you want to become a judge, it's part of the price of doing business. which is, ironically, exactly what the donors are saying, right? they want to get something for what they pay for and they expect to get something for what they pay for. so my sense is just from writing about it a couple years ago and last year it's a very sophisticated operation at this point in most cases. >> and i'd say there is a big difference between states and between races. we've documented many state supreme court races are just multimillion dollar affairs. they are huge, sophisticated, well-funded, expensive operations. going down to, say the case we're discussing today you might have a much smaller affair where not much money is raised and spent in a case and perhaps you could have a very small campaign committee of only a couple people. one thing i would say is it doesn't seem especially onerous to require as pyring judge to -- aspiring judge to read the rules and follow them. if they are unable to do that i think we should question their fitness to sit the bench. >> we stumped you? no more questions? well great. well we appreciate you being here this morning and listening to us and hopefully, you guys have taken something out of this, and we'll be around after to answer any questions. [applause] [inaudible conversations] >> wednesday british prime minister david cameron takes questions from members of parliament during question time in the british house of commons. that's live every wednesday at seven a.m. eastern here on c-span2. and this thursday and friday prime minister cameron is in the united states for meetings at the white house with president obama. we'll bring you coverage of any press briefings with the two leaders on the c-span networks. >> dr. anthony fauci our guest this sunday on "q&a," is on the front line battling against infectious diseases. >> we have drugs right now that, when given to people who are hiv infected if someone comes in and i could show you the dichotomy in the early '80s if someone came into my clinic with aids the median survival would be 6-8 months which means they would be, half of them would be dead this eight months. now if tomorrow when i go back to rounds on friday and someone comes into a clinic who's 20-plus years old, who's relatively recently infected and i put them on the combination of three drugs, the cocktail of highly antiretroviral therapy we could do mathematical model ing to say if you take your medicine, you could live an additional 50, 5-0, years. so to go from knowing 50% of people are going to die in eight months to if you take the medicines you could live just a few years less than a normal life span that's a huge advance. >> director of the national institute of allergy and infectious diseases dr. anthony fauci sunday night at 8 eastern and pacific on "q&a." >> the house rules committee met monday. this portion of the hearing is an hour and 45 minutes. debate on the homeland security spending bill begins when members return at noon eastern. >> the meeting will come back to order, and thank you very much. we were trying to wait for several other members, but it looks like that here we go there. as i was reminded there's a football game tonight that also is on our schedule. and so as we bang the gavel down, it's my hope that our other members on both sides will want to appear. and i want us to know that we're now having the second panel related to h.r. 240 department of homeland security appropriations act for 2015. previous to this just a few minutes ago we had nita lowey who appeared on behalf of the appropriations committee, we had the gentleman, john carter the subcommittee chairman, who spoke about the bill and now we are reconvening here at the rules committee tonight to hear about the amendment process. and i recognize that we now have mr. attar holt, mr. barletta, mr. gutierrez, mr. castro concern i did not have you on the list, but i'm delighted that you're here -- and ms. lofgren, we're delighted you're here. ms. lofgren, you been here for a couple of hours i'd like to defer to you first. of i'll just go back and forth. we'll go ms. lofgren then mr. aderholt, then mr. ambiguity less mr. castro mr. barletta, you will be the clean-up batter tonight. pretty good thing for a pretty pitcher, pitchers normally go last in the battle order anyway. so nothing new here. we're delighted that you're here. ms. lofgren, you're now recognized. >> thank you, mr. chairman. noting that my friend judge carter and ranking member nita lowey spoke on the underlying legislation, i will limit my comments to the five amendments that were released on friday night by the majority. the first amendment offered by representatived aderholt mulvaney and barletta is designed to -- [inaudible] l all but one of the executive actions from taking place. this includes the deferred action for parental accountability initiative that would offer temporary or protection from de30ration to certain parents of u.s. citizens and the expansion of deferred action for childhood arrival initiative to include people brought to the country as children who have extensive ties to the community. in the absence of any other reforms to our immigration laws this provision would break apart more families and destroy more communities. it would insure that we continue to deport the parents of u.s. citizens and lawful permanent residents and send many thousands of these children into the foster care system every year. but the amendment actually goes farther than that. in the interest of time i'll touch on just a few of the initiatives targeted by this amendment. it would prevent dhs from using formal rulemaking to approve the additional waiver of the three and ten-year unlawful -- [inaudible] to help u.s. citizens from avoiding extreme hardship that would result if their close relatives were forced to remain abroad for three or ten years as part of a process of obtaining a green card. the changes the administration intends to make to the provisional waiver process would wring the waiver more closely -- bring the waiver more closely in line with the terms of the waiver enacted by congress. second from taking steps to insure that u.s. citizens who want to serve in the military will be permitted to do so, notwithstanding the fact that they have an undocumented parent spouse or child and, third, the amendment would prevent dhs from finalizing regulations to permit spouses of h-1b workers who are waiting for a green card to get work authorization themselves. it would also prevent dhs from increasing job portability for h-1b which helps raise wages increase opportunities and reduce exploitation. fourth, the amendment would prevent the administration from using its parole authority and national interest waiver both created by congress, to capitalize on the innovation of foreign entrepreneurs and to make green cards available to accomplished entrepreneurs with a track record of creating jobs and generating substantial revenue. finally, the amendment would block a series of initiatives designed to promote the integration of immigrants and refugees into our communities and to help lawful permanent residents complete the naturalization process to become u.s. citizens. in fact, the only november 20 executive action not blocked is the one pertaining to pay increases and work force realignment in i.c.e.. the message this sends, i think, is that pretty much everything the administration's done over the past six years to defer removal for the parents of u.s. citizens to promote legal immigration, promote citizenship, sensible enforcement priorities, spur entrepreneurship, protect american and foreign high-skilled workers was somehow an unconstitutional abuse of power by giving more money to i.c.e. officers to track down and deport immigrants is just right. the second amendment is offered by representative blackburn and is more targeted but no less objectionable. this would prevent the use of funds to further implement the original 2012 dhaka memo -- dhaka memo. because there had been some confusion in the past, this amendment explicitly applies to new applications, previously-denied applications. it would prevent hundreds of thousands of young people who have already come forward and receive renewed action from renewing their deferred action and would, again, put these young people in a deportable status. the desantos amendment states that no fees or funds may be used to implement any enforcement policy that fails to treat any people convicted of an offense involving domestic violence, sexual abuse child moll station or child -- molestation or child -- [inaudible] as the highest priority. nearly all of the crimes described in the amendment already are treated as top priorities of the department. that is the case with crimes involving sex abuse with a minor, child pornography rape, any crime of violence in which a person receives a sentence of one year or more and nearly any felony regardless of the terms of imprisonment. the only crimes that do not fall within the highest priority are deemed significant misdemeanors under dhs, and they're in the second highest priority and still preclude the relief. so all the people we're talking about are high enforcement policies for dhs, and they're all ineligible for deferred action. this amendment is not unnecessary, however it's also harmful because under the dhs policy. it was careful consideration of domestic violencing conditions must be given because we want to make sure that victims of domestic violence are not treated as a high enforcement priority. and here's the situation that can occur. in some jurisdictions when there is a domestic violence call, all the parties present are arrested. and the theory being sorted out not in the living room with the battling bickersons, but at a later date. often times one of the victims may simply plead guilty to a minor offense to get out of jail, we believe and the president has directed that there should be scrutiny to make sure you're not saying in that case a victim of violence is treated as if they are to offender. this amendment would nullify that. the fourth amendment is an amendment by representative thompson, and it's based on a premise that i believe is false which is that the president's immigration actions create an incentive for employers to hire deferred action recipients instead of american workers. that's not true. all businesses, which are the vast majority, are generally exempt from the employer mandate because they have fewer than 50 employees. there's no incentive there to hire people with deferred action over oh workers. -- other workers. larger employers that provide insurance cannot pick and choose which of their employees get health insurance, and if they do not provide adequate insurance policy, the penalty they pay is generally based on the total number of employees regardless of immigration status. so let's not forget that the alternative to allowing people to come forward to register with the government and get right with the law and obtain deferred action and work authorization is the status quo. millions of workers living in the shadows and working under the table where they are much more likely to undercut american workers and lower wages for everyone. and the final amendment filed last friday by representative shock says it is the sense of congress that uscis should adjudicate petitions of individuals in lawful status before adjudicating petitions of individuals in unlawful status. i believe what the amendment is trying to get at is this: when daca was initially implemented there ended up being wait times for other petitioners and that was unacceptable. however, the amendment ignores the fact that usces is much better positioned to avoid delays than it was in 2012. the amendment also sweeps far too broadly. uscia handles many petitions filed by people in unlawful status that we would never want to put at the back of the line; asylum applications adjustment of substitute applications people married to american citizens, requests for t visas for people who are victims of sex trafficking or crime, these are all people who would be harmed by the amendment. i can't believe that was the intention, but that would be the impact. i believe congress needs to have a discussion about immigration policy. i'm always open to that discussion. and as you know, i was part of a bipartisan group that met for four and a half years to try and craft a bipartisan bill which we finally actually did. but i don't think these amendments really solve our need to reform our immigration system. last time in committee the chairman asserted that he didn't want to deport 11 million people, nor to deport the dreamers, but that is exactly what these amendments would accomplish. so only if you approve deporting dreamers and the parents of american citizens should you make these amendments in order, and i thank you for listening to me. these are important issues that i have devoted many, many years of my life to, and i yield back. >> thank you very much. if i can engage the gentleman quickly, i said i did not want to throw them out. there was a suggestion we wanted to load them on cattle cars, and i said that is not the process. so i did not say they could not be deported what i was in reference to is the assertion. i'm from the party of abraham lincoln, teddy roosevelt and ronald reagan. we follow process. >> i certainly did not mean to missate -- in the gentlewoman does understand what i'm saying then. i appreciate it very much. mr. aderholt welcome to the rules committee. you're normally up here on appropriations time with agriculture. i assume, i've forgotten, do you still have that a chairmanship? >> [inaudible] >> and that you did. that you did. >> but thank you for your -- >> gentleman's recognized. >> thank you. thank you for having -- [inaudible] >> microphone please sir. >> thank you for having me here this evening. the distinguished members of the committee and allowing me to speak on the amendment which i am cosponsoring with congressman mulvaney and barletta to the department of homeland security appropriation bill. i do want to recognize the work of representatives mick mulvaney of south carolina and lou barletta of pennsylvania for their partnership on these important issues. for time's sake, i want to keep my comments brief, but please let me -- can allow me to highlight some of the purposes of the amendment. the amendment that is before the rules committee prevents any funds appropriated or user fees collected by the agency to be used to carry out the executive actions that were announced on november 20, 2014 by the president which will grant deferred action to an estimated four million people in this country unlawfully. additionally it declares that no funds may be used to implement any substantial similar policies to those that the amendment defunds. the amendment defunds the obama administration's prosecutorial discretion memos which have eroded inflation enforcement in the interior of the united states, and my colleague -- representative barletta -- i think will speak to that more directly in just a moment. finally, the amendment clarifies that the programs we're already funding, regardless of their form have no statutory or constitutional basis. again, i've kept my comments to a minimum because certainly know that we're going to be hearing from several other members here this evening, but thanks for allowing me to be at the chief and would be -- at the committee and would be please today answer any questions. >> mr. gutierrez, welcome to the rules committee. you are a very valuable part of this body, and your testimony is very welcome, and the gentleman knows that we -- last time had some words with each other and i'm glad the gentleman has come back. gentleman's recognized. >> well, last month in this room at this desk and almost exactly at this hour i testified to this committee. the next day i had my testimony turned into quite a remarkable exchange between the chairman and myself on the issue of immigration. the bill in question was from congressman yoho of florida and was meant to cut funding on an executive action that the president announced on november 20 2014. i argued that undercutting the president's executive actions and defunding kerred action for childhood arrivals program from 2012 was about tantamount in my book to calling for the blanket deportation of every undocumented immigrant. all 11 million immigrants in the country illegally. indeed, anyone out of status who comes in contact with our immigration system. i tried to lay out the logical extension, the more than 5,000 judgement poe -- 55,000 jumbo jets we would neat -- we would need to deport those people and the millions of legal permanent residents, family members along with them. i discussed the food that would rot in the fields if we drove every undocumented immigrant out of the agricultural i have by making them priorities for deportation for as we know, the vast majority those who work in our fields are as some call, illegal aliens in this country. if you will recall, mr. chairman, you were not too happy with me this evening. you thought it was outrageous to claim that any member of congress or to use your words, quote, no one in reasonable republican leadership, end quote, contemplated anything of kind. you assured me that you would never contemplate deporting immigrants quote, unless quote, they were dangerous to this country and committed a crime. and to suggest anything else was an affront to you personally. well, now we are discussing legislation designed to make certain immigrants a priority for deportation. they are, one, dreamers who came to this country as chirp and submitted their fingerprints for a criminal background check and passed that criminal background check. they passed it. no crimes. most of them have been three years working, filling out income tax returns, got right with the law. the amendments taken together with dhs appropriations bill say they would not only be treated as deportable, would be a serious priority for deportation equal to any criminal. two, the spouses of military service members would no longer be protected from deportation while their husbands and wives are fighting for this country overseas. spouses of those who have fought or are currently fighting. we have this incredible broken immigration system that on the one hand gives a man or woman an order to go protect the nation and at the same time receives an order for the deportation of their spouse. actions taken by the president to grant with them parole would be lifted so that they would also be made a priority for deportation. three, the victims of domestic violence who come in contact with local police would be lumped right in with the men who beat them up and abused them! and they would have the same priority for deportation. the abuser and the woman abused. that is something that this administration has taken care of. the gentlelady from california asserted earlier. dreamers, military spouses and victims of domestic violence these are three groups republicans feel are getting too easy a ride under president obama. a president who has deported more people than any other in the history of this nation. a president who has protested at every event by immigration activists for deporting too many people. you're saying we need to deport more dreamers more military spouses. in "the new york times" my colleague said what the republicans have put forward is designed to satisfy the most conservative elements on the issue of immigration and deportation. he was very happy the republican leadership was lining up to give the wing of the party everything they asked for. quote: this is as close to 100% as we've ever gotten on a tough issue like this. so here we are reaching back to the president's first term to make dreamers, military spouses deportable, republicans in the house are saying that the very idea enshrined in american law -- that prosecutors should be able to apply the law so that the real threats and criminals are at the top priority and noncriminal and nonthreats are not a top priority -- the whole nation is thrown out the window. but wait, all of the president's actions are unconstitutional. and he has overstepped his powers in the minds of republicans. but they make one exception. there is one exception, mr. chairman. the president was absolutely acting within the law when he addressed the salaries of our law enforcement officers and put them on the par with federal law enforcement officers. he did that together with the dreamers and the parents of american citizen children. the republicans agree with that so therefore, the president has the constitutional authority. but when the republicans disagree, the president is a dictator and a rogue. i find it hard to believe after the incidents this past week, bombings and shootings and hostage taking that your side wants to play political theater with the big law enforcement entity we have, the entity charged with guarding our ports, our border, our airports and our coast. i just don't see how this is good politics, good policy or way of showing the american people that the united states congress is in the hands of a republican party that's doing everything to keep us safe. thank you, mr. chairman. >> thank you very much, mr. gutierrez. mr. castro, welcome. i'm delighted that you're here gentleman from san antonio. >> that's right. >> i consider really to be my hometown. i went to high school. and, yes, sir, and i want to really tell you we're delighted that you're up here and with us, and i hope your brother is well. >> oh, he is. >> you as upset as i am about the -- [inaudible] football? >> oh, i think -- [inaudible] >> there we go. [laughter] see, we're talking about ohio state, we're talking about texas tech today, now we're talking about dallas cowboys. yes eman's recognized. >> thank you, mr. chairman. >> mic, please. >> your mic. >> thank you, mr. chairman and members. i submitted four amendments, and i'll go through them fairly briefly for you. the first one is a $1 million increase to u.s -- to the united states customs operation to supply and test victims of rape using rape kansas city and decrease the salis and expenses -- salaries and expenses account within the united states immigration and customs enforcement. many of you on the committee may have followed in the news that there have been many instances of both alleged and or verified sexual assaults in detention centers in different parts of mostly the southwestern united states. and as we did our investigatory work, we found that according to the agency, some of these detention centers may have rape kits and some might. oftentimes the victims of sexual assault are sent over to hospitals. but because some of these detention centers -- in fact, many of them -- are in more remote areas of states those hospitals are sometimes long distances away. this would simply provide a budget for rape kits to be at the facilities, at the detention centers to be used by the medical personnel there. that's my first amendment. my second amendment would be, essentially, a raise for border patrol agents. i know that in this bill there is a raise that is included but we also know that for a few years their raises were frozen. so it would, it would include an increase of $5 million for border patrol salaries. the third one is a $1 million increase for tsa specifically for the screening of airport employees. a few weeks ago there was a very alarming story about gun smuggling, an employee who was gun smuggling out of the atlanta airport, smuggling guns to new york. now, in that instance it was a case of gun smuggling but you can imagine that if an employee can smuggle guns, they can be with smuggling drugs, other contraband or even explosives. so this amendment highlights that issue and requests an increase of a million dollars to address that situation, chairman. and then the fourth one, of course, is the biggest amendment that i have which is, essentially, contravenes or offsets mr. aderholt's amendment and ms. blackburn's amendment, would essentially negate legally what they're trying to do with their own amendments. >> thank you very much. >> sure. >> mr. barletta. we're delighted that you're here. the opportunity for you to come to the rules committee is exciting for us. >> thank you, mr. chairman. >> the gentleman's recognized. >> thank you. thank you very much. before i came to congress, i was the mayor of my hometown in hazelton pennsylvania. hazelton's 2,000 miles away from the nearest southern border. it's not a town that you would expect to have a problem with illegal immigration. but we did. i saw that our population increased by 50% which is a large growth for a city. however, our tax revenue stayed the same so can you imagine trying to provide services to a city that has grown by 50% but no more tax revenue to provide those services? i saw illegal immigration from a different perspective than many of my colleagues because i had to deal with it firsthand mayor of a small town with limited revenue. our school district to show you how it affected all aspects of life, our school district in the year 2000 esl english as a second language the budget was $500. just fife years later -- five years later the budget was $1.5 million. but yet we weren't seeing any more revenue. so, you know, we were seeing a whole different side of the problem of illegal immigration that many others haven't seen. i remember one time we had arrested a guy for, he was selling drugs on a playground. it took our detectives five hours -- he was in the country illegally -- took our detectives five hours to find out who he was. he had five social security cards. and i realize law enforcement doesn't know who they're dealing with too in many times. i testified as a mayor at the time to senator kennedy and senator specter and said this is a national security problem. we had in our little city we had taken down a fraudulent documentation ring where for $1500-$3000 you can get a whole new identity. you can become anyone you want. and i saw a different side of the problem, and very few people recognized that. you know i remember back in 1986 president reagan gave am necessary the city to what was to be -- amnesty to 1.5 million people turned out to be 3 million because immediately when people realize we're going to get amnesty, more people rush to come in. there was a man who was given amnesty as an agricultural worker, but in reality he was a cab driver in new york. he was involved in the '93 plot to blow up the world trade center. the only thing he ever planted in america was a bomb. so my problem that began my crusade was that we are not going to be doing face-to-face interviews when we do background checks. anytime anybody said that we're going to do background checks there will be no face-to-face interviews with any of the applicants. we will have no idea whether the information that we're getting is the truth whether it's really a good person that just wants a better life or somebody that came here to do something wrong. so it was as mayor that i saw firsthand how illegal immigration can affect a community trying to provide services with limited resources. i believe that my stance against illegal immigration was really the reason i was elected to congress in the first place. let's be clear about something right now, the president's amnesty program did not just begin all of a sudden with his announcement on november 20th. it goes back well beyond that. it goes back to the so-called morton memos of 2011 and that led to the deferred action for children and rivals program or daco of 2012. daca of 2012. i believe we must do everything we can to defund the president's am necessary the city program, and in my view -- amnesty program, and in my view, it goes straight to the heart of it. those them e mows instructed immigration officers to ignore broad categories of illegal immigrants and halt deportation hearings for them. in short, the memos told immigration officers to view the law the way president obama wished it had been written rather than how congress actually wrote it. this completely guts immigration enforcement in the united states. i've talked to i.c.e. agents about it and many of them have told me because of these memos they are actually afraid to do their jobs. i'm someone who has dealt with illegal immigration as a small town mayor. i know what it looks like on the back end when the federal government doesn't do its job. our amendment very simply is about making sure that at long last we enforce the law. thank you. >> mayor, thank you very much. i want to thank each of you. i believe mr. gutierrez you spoke about what happened last time we were here. i don't need to characterize it, i only slightly disagree with m some of your recollection, but i do know it was a difficult time. today we've had a chance a to think about what we're doing. i believe there have been perfected amendments to allow and think and see about the actions that are taking place. i myself will have to make a determination about where i am on this issue. i feel very strongly that we should as a congress, as a body and as a party, my party, address this issue. we have been placed in this position right now i believe -- rightly or wrongly -- at a disadvantage. i think the president of the united states has been taking advantage of things that he believes in. but i do not believe this president should do things of this nature. and i find myself as a member of this body believing that we can address these. we should address these. but i believe it's wrong by what the president's done. earlier when we opened up the hearing, i spoke about what i believe was illegal, unlawful and unconstitutional. and my party has taken a few minutes and thought about this over the last few weeks and i think that you've seen a fair presentation on both sides by honest people who can sit at the same table and recognize what we're doing. what our party is not doing is attempting to do anything at the last minute. my party is not, nor or is this body attempting to do anything without agreement by the united states senate. we recognize and respect that process. but i believe that my party and its people do understand that once this process is started and done we're going to have to deal with it in an effective and honest way, and i believe that's what we're doing. so for the five of you who have showed up today who have disagreement, i applaud you for coming to this body and for speaking your mind, and i'm delighted that you're here. chairman kohl? >> thanks, mr. chairman. i just wanted to thank the members for being here. i know all of you well. maybe not quite as well for you mr. castro, but look forward to getting to know you better and work with you more in the years ahead. look, we all know what a challenging issue this is and how high the emotions run and how difficult the debate is likely to be. but i think it's an important debate and discussion for us to have. i appreciate all of you playing frankly, leading roles in that. you know i look at what we're likely to do here in the, and this week as beginning that debate and that process. i want to associate with the chairman's remarks about recognizing the role the united states senate has to play in this. but it's important in my view, that we proceed legislatively in regular order which is what i i think we're trying to do here. because i think that's ooh over time what work -- that's over time what works the best. and that's where i do disagree with the president on this issue. i think he's whether intentionally nornlt, short circuited that. and i think if we're going to get to a national consensus, then there has to be a national debate and a legislative process. i know all of your positions well, i know the legislation well, don't really need to ask any questions. i just want to tell you i think that each and every one of you is playing a really important role in this process. and, you know, it's time for us to have this discussion. i suspect this will not be the only piece of legislation we see this year about this, but i do think addressing the president's unilateral actions is the place to begin. i think that's what this legislation does or many of these amendments do. i do want to say this i take considerable pleasure in the fact that in the underlying base bill we're actually pretty close together. the base bill is actually a preconference bill conferenced between the democratic senate and a republican house with the president, of course playing a role. so in a lot of the spending, we're not too far apart, and in a lot of the emphasis. so i think this will both clarify the differences in these amendment debates but also move us closer, ultimately, toward a legislative solution which is, in the end, where we've got to get to. and i don't think, you know unilateral actions are likely to ever solve the question. so again, just want to thank each of the members for being here, look toward to the discussion and -- look forward to the discussion and with that, mr. chairman, i yield back my time. >> mr. chairman, thank you very much for your comments, and i do appreciate not only the way you've said that but the spirit you mean what you've said very much. for a man who's engaged in the heart of this battle, i think it's important for us to speak clearly about a chance to work together which you've done. thank you very much. mrs. slaughter? >> thank you, mr. chairman. i'm not really entitled to ask you questions because i missed the testimony. i was doing special orders on governor cuomo. so i hope you'll forgive me for that. the way i see this whole thing, the way we're meeting here, is a bit of pique. if the president had not taken unilateral alaska no action would have been taken. there wasn't much option here to try to get things done. and hopefully, you all saw the chart a i believe today in "the new york times" about how many special orders that president obama has issued in comparison with ronald reagan. i think it was about a third as many. and nobody on my side or at least we have no evidence of it that anybody went screaming to the court and said he can't do that because we don't want that done. i'm absolutely at a loss to try to even understand why we were being so awful about immigration and in the being able to do it since this is a country of immigrants. any more than i can understand the constant haggle trying to take health care away from people. i don't know what the country's coming to. i've been here a while, but there's a meanness, a mean streak that runs through all this that i find distressing. we're playing with homeland security here today. and what we saw last week, how dare we do that to the american people? just because you don't like what barack obama did, let's grow up for heaven sakes here. i wish to goodness that there would be some possibility which absolutely does not exist that we would maybe have a rule to fund the homeland security department which we should have done in the first place. secretary johnson said he couldn't possibly make a plan. he didn't know how in the world he was going to run his agency without any budget. we have just dangle led this out here for months. enough already. think what we look like in the rest of the world all those people who marched in france all those people out there sunday. if they knew that the united states congress was here about to destroy homeland security because most of us can't vote for it because of what you're doing to a large section of children who we've all said live here, have meant us no harm, need education, and we all know and certainly mr. gutierrez has pointed out all reasons why we cannot deport 11 million people. i'm a little put out about it because we've been up here for hours on this. it will probably pass the senate, but it'll be vetoed we know that. so it's again another exercise in few facility of the united states -- futility of the united states congress being unable to step up to the base and do its job. so i appreciate your efforts. they won't work a bit in the world, but we keep trying. thank you all for coming, all of you. you're all my friends. i think very highly of every one of you. but i'm so tired of these games. we'd all be with so much better off if we'd stop. it takes too much energy. we'd be much better off doing many, many err things to move -- other things to move this country forward. >> gentlewoman yields back her time. gentleman from south carolina is recognized. >> i wish the gentlewoman from new york had been here for all all of mr. barletta's testimony. when i listened to that testimony -- >> it is mean. >> i heard a public servant who was trying to serve his folks as a mayor back home, someone who was struggling to provide for families the services and requirements that they have to live their life as we as americans want it to be done. you didn't hear a bit of meanness, you didn't hear a bit of anti-immigrant conversation, what you heard is someone trying to find answers and trying to find solutions. the other gentlemen we have here offering amendments on the our side of the aisle is the former chairman of the homeland security appropriations subcommittee. to suggest for a moment that someone who has borne that burden of responsibility is here today trying to undermine national security defies the collegiality that i would have said we have developed here. and it makes me sad because this isn't the issue. i have a district full of first generation families. i doubt there's someone who's been in congress more than five years who didn't try to work a case for a constituent's family who had a loved one pass away and wanted to bring a young family member in from overseas to be with the family at the funeral. but u.s. consulate officers had to say no, you don't meet the qualifications for coming into the country, you can't come to be a part of your family's grieving. you have to stay away. now, as it turns out, as the president has defined things, if you defied american law if you'd snuck in to be with your family, if you'd been smuggled in to be with your family, there is now a pathway to the american dream for you. but what there is not a pathway for still as we sit here today are those families in my districts who also want to be reunited. those families who also want to be together. dad gummit, i know we could find solutions. to suggest that if we don't do it the president's way it's never going to get done, again rejects a whole dais full of folks who have exactly the same challenges in their district that the gentlelady has in her district. and finally, having sat through two years -- four years of rules committee hearings where the definition of futility was passing a bill in the house because it was what we believed but it's going to go nowhere in the senate, it distresses me no end that the new definition of futility is to pass a pill that the senate is also -- a bill that the senate is also going to pass but now the president rejects it, now that's an exercise in futility. and, sadly, if that's the way we've defined things, then what the house does doesn't matter and what the senate does doesn't matter. what matters is what the president believes? it is no wonder that some of my colleagues are not as outraged by these november alaskas as i am. -- actions as i am. this is not an immigration issue we're talking about, this is a separation of powers issue. and it is tremendously important that we have both of those conversations. not a conversation about rhetoric, but a conversation that leads to solutions. we need to solve our article i and article ii issues, and we need to solve our immigration challenges that again impact families in my district with every bit as much intensity if not more given the composition of my district. as my neb -- as any member on this dais. and to those folks who are working independently to try to make a difference for those families in my district and in theirs, i'm grateful to folks for doing that. i do, i believe that we have 214 votes for a solution. i believe in my heart that what the president did in november is making it harder to provide those solutions. i regret it. this is an academic conversation. this is -- >> would you yield -- >> be happy to yield. >> i'll be extraordinarily brief, but i do think given the importance of homeland security, i think, frankly, it was really a drastic error. and as we said the secretary said he could not run a committee or an agency if he didn't know what his budget was. but, so i certainly agree with the importance of that. but by i attaching immigration to it surely you knew what you were going to draw was a veto as well as probably not very many votes on my side. and not because we don't agree with homeland security, but the attachment of that. and, frankly, it was a poison pill we had in the banking bill. i think you brought that down on the floor last week. we're going to have to be very alert to watch out to see that dodd-frank doesn't just disappear completely off the books here with little sidling things in left and right. but i stay with what i said in the first place. i think it's almost a childish thing to add something like that to try and make the president mad to go and poke him with a stick or whatever it is you're trying to do here. i yield back. >> the i hope that we can come to an agreement that defending article i prerogatives is not synonymous with poking the president with a stick. i hope that it's bigger than that. i hope that it is more substantial than that. development, i don't intend to dissuade the gentlelady of her views, i only wish to dissuade her that she's in an institution surrounded by meanness. i suggest to her that she's in an institution surrounded by caring and compassioned and a deep deep, deep love for this country on both sides of the aisle. and i think if we focus on that commonality as opposed to the differences, we're more likely to come to solutions than the other way around. madam chair, i yield back. >> gentleman yields back. mr. hastings. >> thank you very much dr. fox. first, madam chair, i would ask unanimous consent to include the statement of administration. >> without objection. >> and i lift from its third paragraph the following: however, the administration strongly opposes the addition of any amendments to the legislation that would place restrictions on the department's ability to get smart enforcement priorities focused on criminals. .. i would just ask him if these five amendments that police lofgren so adequately explained from the position of that she takes after years of working in, before coming to congress on this issue and in congress as well and being a county official also at some point do you see these five amendments as the solution to our immigration problem? i ask my friend from georgia. >> i think, my friend, i see thesefy amendments as a solution to our constitutional separation of powers problem. >> all right. i hear you on that and i've been around here a long enough to see and know that the effects of other president's executive actions and i understand, i believe you all's outcry up to a point but i want to, we've all done the "je suis charlie" thing mentioning what happened in france but this particular measure, the base homeland security measure takes, and make as decree of $39 million in the national programs and protection directorate for cybersecurity. now, let's bring us to january 12th and the early portions of this day that most of us awakened to, in addition to the many retail establishments, many of whom we do business with and had credit card with and the sony cyberinvasion. we wake up and learn that some point it was in large measure unclassified material of the central command of the united states was attacked under cybersecurity. i just ask my colleagues how do you feel and i will do it rhetorically taking $39 million away from the directorate? let me tell you what happens. i don't know how many of you other than fighting bureaucracies or been involved in themselves if you reprogram money and don't have money and start tinkering with it, if you get piled up, i might add a footnote. we will be back here for when the deadline for this end we'll be back here talking about this same measure again when we could very well have pass ad clean appropriations measure and indeed could have the discussion that we need to have in this country about immigration. so toward that end, i just, for the life of me can not understand why we would not want to fully fund the directorate of for cybersecurity, all of us knowing that we're likely to be confronted with many more issues of cyber, security concerns to all of us and we'll live to see that because it's going to happen no doubt sooner rather than later. i want to direct my attention to one of the newest members and i too want to see ohio state get on with this business so i went spend too much more time but i do want to address mr. collins and i hope mine and his becomes a similar friendship to that that i share with your fellow georgian, my good friend, mr. woodall. mr. collins, i don't speak for mr. mcgovern. you will be hear enough to hear from me until sometimes you will wish you had not accepted this position on this committee but there is no time that i can think of in the long period that i have been on this committee that i have feigned indignation nor do i feel that about my colleague, mr. mcgovern. we all speak very passionately as you did and we have that prerogative but you will hear from me sometimes real indignation about idealogical attacks like what's going on right now with these amendments but i'm not feigning and i just want to make it very clear that this is pretty serious. >> will the gentleman yield? >> of course i will. >> i do appreciate it and i appreciate my friend from florida and do look forward to that relationship growing. i think probably you're right feigned indignation was probably not the right, i was probably trying to be lighter than i should have been. i previous the perception of indignation, i believe the perception that something that we on this side many of us believe to do, and then to bring up the fact that instead of talking about what has been missioned here on the article i article ii separation, what we truly believe is the issue, which i believe should abbey partisan problem. a bipartisan issue for congress. i go home all the time and really the root of both, many times my democrats that i represent, democrats as well as all of my very conservative district groups and democrats and republicans they feel like congress doesn't matter anymore. what are y'all doing anyway? doesn't seem to matter because we run on continuing resolutions and run on executive orders and executive memoranda by the way use ad great deal on this and overlooked and we focus on executive order and this is executive memoranda that we're dealing with here. i will say this to my colleague i appreciate the passionate debate. one of the reasons why i agreed to come up here but also please accept my, when i say probably should to the have used feign because i believe it was a diversionary. to say for us to talk about immigration is what we really need to do and not have those discussions when at the same point feels like at the time passionately spoken to when it could have been done, we already had bills we talked about in this committee today that were forced upon a minority at that time, our party that was my purpose. that is what i was trying to say. let's deal with the real issue here. don't say the in essence it is not about immigration. it is about a president who overstepped his bounds. it is about a president that is our focus here, these fine ladies and gentlemen, i work with many on the judiciary committee. i hear from them. steams we agree many times we don't. the issue from my side at least from this gentleman's perspective we're dealing with something that was an overreach and overstep for it to be characterized as anything else is retelling of history. that is where i was coming from and with that i yield back. >> i understand and what led you to that was something that i hope i can help to clarify for you and that is that, and if you recall, when you were speaking you commented of that democrat and you didn't say, democrats, you said y'all and i say y'all a lot to. yeah hey where do you think i'm from? but anyway the, what you were saying was that we had control of the house and we had control of the senate and you you were correct. and you say why didn't you y'all do it then? it sound so simple when you say it that way. it is almost as if the minority leader at that time, who now is the majority leader did not have one of the most nuanced programs to insure that nothing was done, not only on this subject but on any subject. now let me tell you what the horror of that is getting ready to be as we move forward into the 2016 election will suck up all the air in this place and we all know that in a few minutes. what you're getting ready to see the flipside on the united states senate. we call them the other body, and i can assure you not much, never mind about the president's veto and i do understand the distinction between article i and article ii. i don't have any arguments about the fact that you have that prerogative to bring it here as you see it but the simple fact of the matter is, we could have done a bipartisan appropriations bill that chairman rogers and ranking member lloyd came up here and brought to us and now we have this immigration attachment which can't reasonably help the argument on immigration. now let me turn to mr. barletta and mr.mahre, you represented hazelton i guess is the correct pronunciation, how many people at the time you left the merrillty lived in your constituency? >> approximately 30,000, it was estimated at about 30,000 at the time during the court case. it was also estimated that about 10% of the population was there illegally. if i can make a point, i think it is very important because i know it comes up often. enforcing or standing up against illegal immigration is not anti-i am my grant -- immigrant. our city was 49% hispanic. i took probably at time one of the strongest stances against illegal immigration. i won with 90% of the vote of that city. our hispanic population has grown every year from the time we passed the ordinance which keyfies the -- defies the theory that hispanics would not come to hazelton. in fact they wanted to come to hazelton. they wanted to move their families there. i think it is important it sound good but not reality of what happened. >> the reason that i ask you you dent in and sort of into depth, not with any rhetoric, about the flip side of immigration and having dealt with it from the standpoint of a mayoralty, where you had a substantial influx of people who were not here legally and were not being productive as far as taxes coming in and services needed to be rendered. i just wanted you to understand that you don't have to come from a small town to know that flip side. i come from broward county. i can't begin to believe that there are too many congressional districts in this country that have as many persons who share the spanish language as the congressional district that myself and ileana ros-lehtinen have and i think i have more diverse group because i'm not limited to any one segment. i have a school that has 53 languages in that school. i have several that have more than 40. and one area you left out and may not have been your charge, i don't know how pennsylvania is set up, but you left out hospitals and the people that present and, when you spoke about, and i agonize with you, when you spoke about the amount of money for your 30,000 citizens i could fit them in my life on with the beginning of persons coming to this country from cuba and point to you the amount of money that we utilized in a simulating many of those persons and rightly we did. the same way that we a simulated at some point and then, used anecdotal information doesn't wash with me because i can use anecdotal information to justify just about any one of these situations. and let me give you a for example. i don't know you well. i hope i do get to know you well but by having a vowel at the end of your name i suspect that your parentage may very well be from europe somewhere. and i would more than likely suggest -- >> my nose gives that away not the vowel. >> but i would suggest your grandfather or great-grandfather, are they italian? >> they are. >> and you see let's use something i shared a lot of territory of italians who came here. 29 of the 31 mafia families lived in the congressional that i represented previous to this one. and to talk about harm done by illegals, i can begin to tell you that we should never shun the harm of that was done by certain immigrants that came to this country. >> talking about the italian immigrants? >> no, i'm talking about one aspect, one aspect when it comes to crime. and i was going to ask you and want to ask you how do you reconcile -- >> i wasn't talking about the nationality -- illegal immigrant can come from anywhere, sir. >> yeah. >> i wasn't talking about italians but i think you are. >> but most times in these days when we're talking about it, we're talking more about people that shared the spanish language than we are russian immigrants okay? i got my share of them too. so i would just go into it with you. i want you to reconcile for me if you can president obama having the reputation for deporting more people than any president in history. >> sure i can do that for you. >> sure. >> what he is counting is turn arounds at the border. he is not counting about deportations on the interior where never counted a turnaround at border as deportation they now included them in their numbers. you talk about trying to make, shine a different color light to make somebody by a different color suit that is exactly what you're talking about. >> i would like for mr. gutierrez to respond to that? >> well, first of all, let's be very clear that we are not fixing the problem that the gentleman from pennsylvania raised. we're not fixing that here today. he spoke about people that din pay taxes. i have got 600,000 young people that are on the books with social security cards paying taxes and getting right with the law. he is talking about people the police didn't know who they were. i to the 600,000 kids who went through a background check. there are 495,000 paid another 90 bucks so their fingerprints could be processed. that is what he is talking about but that is not what we're talking about here. we're talking about people who are on the books paying taxes contributing. now, if the gentleman had come forward said look at these thousands of people, mr. gutierrez, who are paying taxes who are criminals but that is not what you're stalk about. i'm talking about members of the armed forces of the united states of america. members of the armed forces of the united states of america who when the president saw that their spouses were being deported while they were receiving orders of deployment, there was an order of deportation, that is wrong. that is what you're eliminating here. so i can't understand even casually what was going on in your city in your town, what we're addressing here. i want to address immigration reform. >> the gentleman yield? >> i will have time but i will yield. >> i just want to say, we're here to address immigration reform. we could take care, look, there are bad people out there. let's go get them. we only put enough money to go get 400,000 people. there are 11 million of them. so why don't we set aside the parents of american citizen children, five million of them parents of american citizen children, why don't we set them aside when we go after them and all of them have to go you there a background check, get right with the law, get on the books so when they come across a police officer in a town, shows them a registration, where they're working. i don't think one thing has anything to do with the other. here is the astonishing thing, they used to say when they came to the border and got caught, it was catch and release catch and release. anti-immigrant forces in congress and nation said that is catch and release. now they catch them and they don't release them. because precisely the argument was they were simply released back once again to be caught once again. now they are processed, they are jailed. the number one crime prosecuted under barack obama's administration, the number one felony crime prosecuted under barack obama's administration is illegal reentry into the united states of america and yet people will sit here in this venue and other venues say he hasn't done anything. it is two million people deported. maybe for others it simply is a turnaround at the border. i suggest you simply come into your neighborhoods and see the real fear. many of us know have held the hearings we have been out in our communities and state to state. so it didn't, it is real. >> let me yield and give mr. barletta an opportunity to respond. >> thank you, i appreciate yielding the time. that is what makes this issue such a difficult issue. you're talking about some good people, some children. i know some great people that are here illegally. what makes it such a tough issue how do you separate salt from sugar? how do you separate the good from the bad? how do you separate a young child from somebody here wanting to do harm? the 9/11 commission report which congress passed and the president signed was very clear that the terrorists people in the country that want to do us harm, they want primarily two things. number one, they want to gain entry into this country and then two, they want to be able to stay. my point is with the president giving unilateral amnesty without peace to face interviews without you can't do a background check on a person as a mayor i know this -- >> just reclaim my time for just a moment. >> does that include fingerprints, when you say you can't do background checks and mr. gutierrez got through telling you about people that signed up and gave -- >> we have no record from the person of their country of origin. you don't you can't prove that. you can't prove who that person is. >> but in many instances their country of origin there are fingerprints at the schools and other places where they have been. they cleared background checks. we're talking about people came here, parents brought them here at age two as american citizens. >> the person that is here we're talking about two difficult, two different people. >> perhaps so. perhaps that is what we should be doing. i won't belabor it. i hear you miss lofgren but my colleagues want to be on about their business and i will do one other thing and stop right here and that is we've been using the figure of 11 million for 11 years. there must by now be 12 million people in this country. so let's begin to try to get it right, all right? if we coin get rid of 11, we damn sure ain't going to get rid of 12. >> gentleman yields back his time. the gentleman mr. steveers. >> i appreciate the witnesses being here. i have got a question for gentleman from pennsylvania and the gentleman from alabama. nothing in your amendment suggests that you don't want to address immigration issues does it? >> let me just speak to that. i think that is something that congress realizes we have to address. this, as i mentioned earlier, in my opening comments simply prevents any fund that are appropriated and user fees collected by the agency to carry out executive actions announced on november 20th, further fourth which will grant deferred action to an estimated four million people in the country, signed by president obama. >> i agree that nothing in there -- [inaudible] >> so, the real argument here is not whether we take action on immigration secure our border, reform legal immigration, deal with folks who are here illegally and how we do it and article i, section 8 clause 4 of our constitution says we all took an oath to protect and defend says congress has the power and i will quote here, to establish uniform rule of naturalization and uniform laws about the subject of bankruptcies through the united states. those two things are not intended to be together but the whole point is, uniform laws created by congress. and that is really what the fight's about here and i don't think the gentleman from pennsylvania or the gentleman from alabama are saying we don't want to deal with this issue. we do prefer to deal with it in a step by step approach. i think that's, these two and 3,000-page bills have not been very good for america in most cases because they're hard to implement and they don't seem to work. and so the gentleman i think are here trying to solve the problem of the fact that this was done in a way that i don't think conforms to our constitution. i respect what they're trying to do. i certainly respect the points that the other representatives have made because you know, i do think we've got to reform immigration. i happen to believe we need to reform it on a step by step basis. i know that we have disagreements about how we do that. but i think you will see that things will start to happen on that with regard to border security. we passed a bill in this house last year with i think 350 votes that dealt with legal immigration and we've got and didn't do everything but did a bunch of things to get us started. i know that mr. chaffetz from utah will reintroduce that bill and try to expand that and do some things on that too. i appreciate all the witnesses being here. i appreciate your points of view. we clearly are a diverse country with diverse views on many things including this issue but i think the bottom line is, this is really a fight about how we're going to get to a solution not necessarily whether people want to get to long-term solution on these issues and i appreciate the witnesses and yield back my time. >> gentleman yields his time. the gentleman from colorado. >> mr. chairman i do have an amendmentment i would like to present at the next panel and i want to present the amendment which includes last session's bill on comprehensive immigration reform as an amendment. there is a lot of talk how this doesn't solve the broken immigration sim. there seems to be a agreement from both sides this doesn't solve our broken immigration system so i hope to put a solution forward and i hope it is included. it is truly incumbent upon us to address this issue. both side acknowledge this doesn't. i think the president the president has certainly taken some steps not to the address of issue of our broken immigration system but to do the best that he can as our chief executive with the hand he has been dealt by congress, namely a set of facts where we have 10, 11, 12 million people here illegally. we don't know, and think my colleague from florida is correct saying it will go up if we continue to take shun, no doubt about that. it is 12 million right now it will be 13 or 14 million in five years. nothing will change until congress changes it. i think what this executive action tries to do is saying let's focus on keeping americans safe. focus resources on criminal on criminal aliens and we know we don't have enough resources, congress hasn't given us enough resources to enforce the law across the board. and i would like to ask miss lofgren with regard to prosecutorial discretion, it seems to me it is already being used in immigration. it is just used in a very disorganized haphazard way at kind of the local level. all that seems to be happening to me here is just a set of riles replacing a selective enforcement that has to occur because there are only some bed compared to the number of people. it is, if anything, it is implying more organization seems like to the manner with which we use our prosecutorial discretion. i wanted to ask her about that use and how this fits into precedence of use of prosecutorial discretion as well? >> i thank the gentleman for the question and in answer i would ask unanimous consent to place into the record analysis prepared by 135 scholars and law professors and confirmed by four former general counsels to the immigration naturalization service, including a general counsel during the bush administration that outlines the precedent for this action action there is nothing that is unconstitutional, there is nothing that is departure from past precedence. some people may not like what the president did. i understand that. people can disagree. but it is not unconstitutional and it is not a massive depart ture from what prior presidents have done. i would note this although i very much agree with the litigation, it might be wiser for people who disagree on this subject to allow the litigation that is currently pending in the federal district court in texas to proceed and find out the answer to the question rather than tying up the entire budget of the homeland security department. >> if gentlewoman's -- >> miss lofgren i heard, the gentleman from pennsylvania refer to the president's actions as amnesty. i just ask him, has the president granted amnesty to anyone miss lofgren. >> the president does not have legal authority to give amnesty to anyone. what he has done is to defer prosecution to on a case-by-case basis to people who are eligible to apply in some categories. for example this has been the case for some numbers of years. the spouses of american soldiers in active duty. we came across cases where wives with were home and their soldier husband was in iraq and they were going to be deported and who was doing to take care of their children and the defend department was greatly concerned by this phenomena. the president said in that case we're going to different some deferred action. he can't give a status. he will say those cases fall to the bottom of the list. we're not going to round up wives of american soldiers and deport them. we'll go after the felons instead and i think that is smart enforcement. >> if they have violated our laws immigration or otherwise that stays on their record. it is not cleared out. it is not amnesty. >> the president lacks authority to do that and i would note the memorandum specifically excuse people from relief that have committed crimes. >> given the president doesn't have ability to do an amnesty this amnesty do you think it's a mischaracterization to call this an amnesty? >> it is not an amnesty. it is prioritization of enforcement. >> in the absence of executive action, isn't there some way this prioritization occurs anyway at the local level? >> what will happen in a chaotic way and on the streets so that individual officers will be making determinations without a national strategy. i don't think, certainly that is not what the constitution requires. it is not what we would want. we would want a national strategy that is smart and directed in a cohesive way. that is what the president is attempting to do and succeeded in doing. >> the final note i want to make before yielding back, i believe, it was mr. hastings entered the statement of administration that this would face a veto into the record and it's rather ironic because we're dealing with a bill about homeland security at a time of increased risk of terror. we saw the recent events in france. we have a president who disagrees with some of our colleagues in congress over this. if this were the to lead to closing down the department of homeland security and putting americans at risk, over an unrelated policy issue it would reflect not only poorly on this congress but it could really put the lives of americans in danger and i urge my colleagues to change course and to pursue a department of homeland security appropriations bill that the president will sign or has 2/3 support or if you're able to get 2/3 support by all means. i doubt this bill will have anything close to 2/3 support but one way or the other i hope the policies being pursued by my republican colleagues do not put american lives at danger by closing down the department of homeland security over an unrelated policy issue. one that i will be offering an amendment to address mr. chair, given both democrats and republicans agree regardless of the contents this bill it does not solve our immigration our broken immigration system. i yield back. >> gentleman yields back his time. gentleman from texas dr. burgess, does not seek recognitions. mr. collins, do you seek recognition. >> i think -- >> gentleman is recognized. >> yes mr. chairman i seek recognition. >> i think the interesting thing and let's get back to the real heart of this as we came to with my colleague from florida the heart of this is a general disagreement on how this was carried out. and i think one of the things is even in this discussion on attaching the homeland and attaching to a funding bill, again as we saw in the occurrences of just a little bit ago, most of homeland security is deemed essential. this issue would not play out in that vein. it goes back to what was done and how it was laid out. i believe again, in the context of where we are working and miss lofgren, you brought up a point, you said the discussion, we talked about this before, that other administrations have done this, it is something all i will say to that, if it was wrong, it is wrong now, it was wrong then and just simply pointing back to a wrong action to make a right now is not the way you find this out. >> will the gentleman yield? >> i will definitely yield to my friend. >> i we worked often on the judiciary committee. my point would be, it wasn't wrong when eisenhower, reagan-bush, took certain actions, when they took actions. it wasn't wrong before and i it is not wrong. i yield to the gentleman. >> i just disagree, when done unilaterally no matter who does it. i think that goes back to my point i made earlier. this to me and many others on our side of the aisle is simply matter that should concern all of congress, both sides of the aisle about the state of this body doing what it was elected and constitutionally required to do. and that is do our job. that is work this hard and make the hard votes and hard decisions and when we're sidetracked by this, it makes it very difficult mr. gutierrez, and others to have these conversations when you have this kind of a process before us. that is the problem we have right now. with that, mr. chairman i yield back. >> mr. collins. thank you very much. i want to thank not only members of our committee but also this panel. mr. barletta mr. gutierrez miss lofgren, mr. castro. you have both down yourself proud tonight and represent the spirit what we're trying to accomplish here. sharing of ideas in this process. i want to thank all of you. we'll move on to the next panel, i want thank you all very much. if you have anything you have in writing, leave it for the awesome stenographer trying to stay up with all the words that we give here. we have, that i'm aware of, two additional members. i'd also like to note that mr. glen glockman who is from wisconsin has been attending this hearing for a couple of hours and i think it is rather telling after new freshman who has taken time not to try to barge their way up here to get up in front of the camera but rather who is taking a good view from the back row today and i'd like to pat him on the back for coming up to the rules committee and watching this as we proceed. miss lee, it's all yours and we're now at the end of about six hours. we're going to try not to show it but i would hopefully express the gentlewoman as she turns on her mike she is welcome to the committee. she knows she is welcome and we would hope she would get to her point and the gentlewoman is recognized. >> i thank the gentleman very much and with certainly with the long time frame that the committee members have been and thank you for the opportunity to just to briefly make known my opposition on the amendment that have been put forward. i assume these amendments will be taken separately and i will not at this time ask for an open rule for which i would typically ask. i'd like to offer as an amendment comprehensive save america act which has been introduced since the 1990s. i want to respond from the perspective of the homeland security committee and i know that representatives have been here from that committee but just want to make brief points and then yield my time back and i thank the committee for its courtesies. i want to cite two points that were made in a cq article. one, from the chairman of the appropriations committee that says it is a very dangerous time. of course he continues in that by saying he wonders whether the president would veto the homeland security bill but his most potent point is this is a very dangerous time. secretary johnson came before our committee indicated that he obviously could not function first with the "cromnibus" but more importantly with a homeland security bill that was going to be delayed. and i think with the testimony that he gave and the acceptance that we live in a world of franchised terrorism i would caution our colleagues with the kind ever amendments that will draw a veto. i will finish by saying as my colleagues indicated, as i have introduced immigration bills and watched these processes without the executive order working with i.c.e. prosecutorial discretion is not new. all that is in the executive order is a framework that is more stringent than the present structure that i.c.e. utilizes. in actuality it require as detailed process for anyone who would be granted not legal status meaning not an immigration status but permission to be in this country. and i think that we are clearly going in a direction that jeopardizes the national security of this nation, if these amendments are allowed to be in contravention of the secretary of homeland security who said, that he will have a very difficult time planning, will have a very difficult time dealing with the atmosphere which we're in. and he will be shortchanged on some major elements lycos guard secret service, and many others that are necessary. so my, i ask unanimous consent to put my statement in the record. >> without objection. >> but i clearly want to emphasize the climate of franchised terrorism we're engaged in this nation at this time and i would hope that these amendments would be rejected. we'll vigorously open pose them on the floor and i would suspect we would have a veto. i don't think the shame would be on the president. it really would be on us as a congress. i finally close by saying, when the president put in place the executive order he said it is there until we pass legislation. this is not a permanent entity or document. and all we have to do is proceed with regular order of funding homeland security and begin a process of passing legislation that may be bipartisan. it may not. but it would be a ledge sure initiative that parallels the very need of funding homeland security which is a must with the backdrop of what we're facing. with that, mr. chairman, i yield back. >> thank you very much. i will give myself one minute. as you finish reading the bill, you will see that there is some $10 million that is also withheld from the secret service. pending which they provide which has been requested, the information about how the secret service is going to adapt, adjust and change their overseas operations where we have dignitaries including the president of the united states to be a part of it. we have found in the united states congress i can't tell you why president of the united states and this administration doesn't like to respond back to us when we have questions. this is one of the avenues withhold money. so we'll withhold 10 million bucks. i think we were pretty wise and smart to do that. we care about the president. we care about the security issues and we care that they're the president's running the government right now the administration but they should be required to come up to plan and tell congress not just whatever they choose to do so.w- does anybody have, does anybody on your side have the question for the gentlewoman? okay. did you see that. okay. would you want to look over here? does anybody have a question for the gentlewoman from houston? seeing none, thank you very much. >> thank you for your point. >> please make sure you leave anything that you brought in writing for your statement. we appreciate it. >> i will do so. i thank the generosity of my ranking member. thank you for her humor. let me make sure i correct it and say executive actions and not executive order. i hear your point about the secret service. this would be an overall veto in all aspects of it, including i think the misdirected approach of abolishing or not allowing them to use fees which have been a mainstay of homeland security for many, many years. >> yes, ma'am. >> with that, let me yield back. i appreciate the gentlewoman. we have that i'm aware of one additional person who is a member of this committee who would seek time and if the gentleman -- that is great. i recognize the gentleman. >> thank you mr. chairman. i would offer an amendment to the rule that would add a section that would require the house to consider a bill consisting of the text of a bill we talked a lot about in the 113th congress. it will be new in this congress and that is hr 15 which was passed in the last congress by the senate by more than 2/3 looking changes in the senate. there should still be enough votes to reach the 60-vote threshold. i don't know it would pass a 2/3 again but i think it would have north of 60 votes and i think it would pass the house. i would hope our members have the opportunity to vote on it. if it doesn't at least we know we tried to bring a solution to immigration. one thing i'm really struck with both everybody who testified acknowledged that, what we've we're doing here with homeland security this doesn't fix emigration and people on both sides said they want to fix it they want to fix it they want to fix it. i'm offering a solution and i hope we make it in order and i hope we make other solutions in order. i really think that what our frustration here is we're dealing with this underlying issue of a broken immigration system. there is no easy answer how you use prosecutorial discretion, whether you use it or not there are still 11 million people here illegally. doesn't go up or down through the executive action. i think it is a more organized way to deal with it. for the reasons mrs. lofgren and others supported it i think it is reasonable thing to do but i agree as they do and just as everybody has it doesn't fix our broken immigration system. i have a bill to fix it. i hope my colleagues can agree to hand amend rule to apply an up-or-down vote on that i will happy to yield to questions. >> thank you very much. questions from your side. seeing none questions from the republican side? mr. chairman, gentleman is recognized. >> just one brief comment. i said to representatives earlier this is not an immigration pill. i don't think 15 is going to fix anything anyway. it will further create a broken immigration system but the only thing that would compound the bad process that has gone on because of what the president has done would be if we tried to stuff an immigration debate into this homeland security bill and i would hope that my colleagues would vote no on the polis amendment. >> gentleman yields back his time, thank you very much. mr. stivers, how close to kickoff time are we? >> kickoff time was supposed to be seven minutes ago. >> kickoff time was seven minutes ago. thank you very much. i'm sure you're not paying attention, thank you very much. mr. polis, thank you very much for your amendment discussion. this now seeing no additional members who here to seek time, this now closes the hearing portion of hr 244, homeland security appropriations act, 2015. chairman will be in receipt a motion from the gentlewoman from north carolina, of the committee, mrs. fox. gentlewoman is recognized. >> i move the committee grant hr 37 promossing jock creation, reducing small business burdens act the rule provide one hour debate equally divided controlled bit chair an ranking minority member committee on financial service. all points of order against consideration of the bill. rule provides the bill will be considered as read of the rule waives all points of order against provisions in the bill. the rule provide one motion to recommit. section 2 of the rule, provides hr 185, regulatory accountability act of 2015 a structured rule. the rule provide one hour of general debate equally divided and controlled by the chair and ranking minority member of the committee on judiciary. all pound of order against consideration of the bill and provide it shall be considered as read. the rule waives all points of order against provisions in the bill. the rule makes an order only those amendments printed in part-a of the rules committee report. each such amendment may be offered only in the order printed and the record may be offered only by member designated in report. shall be considered as read. debated for time sesfied in the report, equally dividing control by proponent and opponent. shall not be subject to amendmentment. not subject to demand from rule waives all points of order against the amendments printed in part-a of the report. the rule provide one motion to recommit with or without instructions. the section 3 of the rule, hr 240, department of homeland security appropriations act 2015, structured rule. the rule provide two hours of general debate equally divided and controlled by the chair and ranking minority member of the committee on appropriations of the rule waives all points of order against consideration of the bill and provide it shall be considered as read. the rule waives all points of order against provisions of bill. the rule makes order only those amendments printed in part b of the rules committee report. may be overred only in the. shall be considered as read. shall be debatable for the time specified in the report. equally dividing control bit proponent and an opponent. shall not be subject to amendment and shall not be subject to demand for division of question. the rule ways all points of order against the amendments printed in part b of the report. the rule provide one motion to recommit with or without a instructions. finally section 4 of the rule provides that the chair of committee on appropriations may insert the congressional record not later than january 14, 2015 such material as he may deem explanner to of hr 240. you. >> erred the motion from the gentlewoman from the north carolina and so i would ask if there is amendment or discussion? >> yes mr. chairman. thank you. i do have an amendment. >> recognized. >> i move to amend the resolution to remove special waivers of points of order to amendments to hr 240, the homeland security appropriations bill. the rule says that republicans don't have to comply with the rules of the house. the five amendments could not be offered on the floor without the rules committee giving them waivers of certain points of order. these five amendments are designed to sabotage a bipartisan deal to fund the department of homeland security and if they became law they could throw their already broken immigration system into even greater chaos. it is irresponsible to give these poison pill amendments special protections from the rules of the house. and as we noted last week in the last congress, this committee handed out 97% of these kind of waivers through the republicans and 3% to democrats. i ask that we give affirmative vote on this amendment. >> thank you very much. the gentlewoman is correct that i have made a early did nation that believe that they should be in and thus they're in the rule. but the gentlewoman also recognizes that she has an opportunity to amend that with a vote. further discussion? gentleman from florida. now ready for the vote of the those in favor for the slaughter amendment signify saying aye. those opposed no. nos have it, nos have it. roll call is requested. >> miss fox, no. mr. cole. mr. cole no. mr. woodall, no. mr. burgess. mr. burgess no. mr. steveers no. mr. collins? mr. collins no. miss slaughter? police slaughter aye. mr. mcgovern? mr. hayes innings? mr. hastings aye. mr. polis? mr. polis aye. >> mr. chairman, no. >> mr. chairman no. >> clerk report the total. >> three yeas seven nayses. amendment is not agreed to. further amendment or discussion? the gentleman from colorado. >> thank you. i have an amendment to the rule. i move we add a section of the resolution house consider a bill consisting of the text of hr 15 from last congress. it is from the 113th, a text of that which is bipartisan senate passed comprehensive immigration reform bill. >> thank you very much. the gentleman has made strenuous and regular comments related to this. so i believe the committee is aware of the legislation that the gentleman speaks of further discussion? >> mr. chair? >> the gentlewoman from north carolina is recognized. >> i would just like to add, put in the record it is my understanding that that bill although it was passed was never sent to the house for its consideration because of the concerns of constitutional issues. >> if gentlelady would yield. yeah, this is a the -- >> gentleman is recognized. >> yeah, thank you. this bill, this congress 114th has not yet passed senate. it passed the senate in the 113th congress. we're now in the 114th. if we were to pass it and amendment was made in order and pass on the floor it would still need 60 votes in the senate to become law. talking about last congress? >> i was referring to the last congress, not to this congress. >> okay. >> i was well aware that that bill passed in the last congress and that's what i thought i said and if i didn't, i was that was, i was correcting the record that has been made often that this bill had passed the senate and been sent to the house. it was my understanding it was never sent to the house. >> not received. >> not received in the house. >> it did pass the senate with more than 2/3. in fact it has not been received by action for the house. that is the only point the gentlewoman -- >> there was, there was a discharge petition filed on this bill. which about over 190 members signed that discharge petition. unfortunately just short of the people we needed to sign it. had we passed that bill, and i should point out the bill has a couple of improvements from the senate version that it replaced, for instance border security language from the senate with a border security language that had been unanimously passed out of the homeland security committee with democrats and republicans changing that. so it had further more language than this amendment. it is slightly different than the version that passed the senate. if we were to pass this it would go to the senate and would need 60 votes for cloture. >> further discussion? seeing none the vote will be on the polis amendment. those signaled aye by saying aye. those opposed no. nos have it. >> roll call vote mr. chairman. >> miss fox no. mr. cole no. mr. wood dal no. mr. burgess. no. mr. stivers, no. mr. collins. mr. collins no. police slaughter. police shortie. mr. hastings aye. mr. polis aye. mr. chairman? >> no. >> mr. chairman, no. >> clerk report the total. >> three yeas, seven nays. >> not agreed to. further discussion gentleman from colorado is recognized. >> mr. chairman under the rule move committee make an order and necessary waivers for amendment to hr 37 by representatives ellison, issa and myself. number eight would strike title vii of the bill. this is move towards transparency. the provides an amendment simply improves the bill frankly. u.s. regulators are lagging behind with regard to implementing new technology and transparency for markets to function. people need to be able to search for financial record filings. unfortunately the provision in hr 37 would make it so public companies with revenueses less than 250 million would not use standardized digital reporting submitting paperwork to the sec we all benefit from standardized physical reporting. it is less physical paper. when done correctly it should reduce costs not increase costs. investors benefit and being able to search with databases with regard to information. unfortunately the bill is written with the without the issa amendment would reverse progress toward transparency and towards efficient markets that we made since 2009 when the sec implement ad trial program that allowed companies to submit their report in digital format. so digital formatting helps businesses helps eninvestors. can actually reduce costs when tools are available to do it correctly. this amendment would strip the hurt language out of hr 37 and improve the bill and i urge my colleagues to allow a vote on this amendment. >> you now heard the amendment from the gentleman from colorado. further discussion? seeing none the vote now be on the amendment. those in favor signify saying aye. those opposed no. nos have it. role call vote mr. chair. gentleman asks for roll call vote. >> miss foxx no. mr. cole? mr. cole no. mr. woodall. mr. woodall, no. mr. burgess, mr. burgess no. mr. steveers no. mr. collins, no. police slaughter aye. mr. hastings aye. mr. polis aye. mr. chairman? mr. chairman no. >> clerk report total. >> three yea, seven nays. >> amendment not agreed to, agreed to. further amendment or discussion? seeing none the vote now on the motion from the gentlewoman from grandfather community, north carolina, vice chairman of the committee miss foxx. signify saying aye. those opposed aye. ayes have it. gentlewoman asks for roll call vote. miss fox aye. mr. cole, mr. cole aye. mr. woodall aye. mr. burgess aye. mr. steveers mr. steveers aye. mr. collins aye. police slaughter. police slaughter no. mr. mcgovern mr. hastings no. mr. polis no. mr. chairman. mr. chairman aye. >> clerk report the total. >> seven yeas three nays. motion is agreed to. i want to thank all the members of the committee. i am aware this is difficult hearing. i'm well aware that a lot of staff time went into this. i'm well aware also a number of members of committee had lots of things they were doing other than sitting here. or at least mr. stivers wishes that. with that said the committee had a duty and obligation and i believe our witnesses in many witnesses took clues directly from the members. i think that we were judicious. i think we were careful. i didn't agree with everything said. i'm not sure you had to or not. but i thought we handled all the witnesses very well. and i appreciate us making this committee work to the betterment of the body. i think that is what we're about. i will be handling this for the majority. mr. polis, my dear friend as we refer to each other from colorado will handle this from the democrats. i do not anticipate or expect we will have further work this week up at the committee and so we have now completed our work for the day and i thank you very much. >> the senate's about to convene on this tuesday morning with debate on the keystone xl pipeline and "the hill" has an article this morning. democrats are poised to make republicans cast a series of tough votes on legislation approving the pipeline. democrats do not appear to have the votes to kill the legislation in the senate. instead senate democrats opposed to pipeline are offering amendments that they think will be tough for the gop to vote against or will play well in the 2016 elections. now to the floor of the u.s. senate.
New-yorkUnited-statesMiamiFloridaAlabamaNorth-carolinaTexasAlaskaGeorgiaCaliforniaWisconsinSan-antonio screeria -- nigeria. - visits phoenix to talk about home ownership followed by a discussion about religion and the free market. on january 20th the supreme court will hear oral arguments in a case challenging restrictions on judicial candidates directly soliciting campaign contributions. legal analysts discuss the pending case and judicial elections at the national press club in washington, d.c. this is an hour and ten minutes. >> good morning, everyone. the timetable this morning is pretty tight. we want to be able to give a lot of time for questions. and so we're going to begin our presentation to you this morning. my name is andrew coen. i'm a fellow at the brennan center and a journalist with cbs news and the marshal project. and i'm delighted to be here in sunny, warm washington. to be part of this interesting presentation. in a moment, i'm going to introduce this distinguished panel each of whom knows a great deal more about this important supreme court case than i do. a couple of points. this is a case about money and judges and the first amendment. and in my 18 years as a legal analyst, it strikes me that's a combination that always draws quite a bit of interest, not just here in washington, but around the country. so when the supreme court takes up the case in a few weeks, it'll be interesting for a lot of different reasons. the case also strikes me as significant because of the perceptions people have of it. if you are a fan of citizens united and mchutchen, you look at this case and you say, these clouds are parting and the sun is about to shine on this new area of campaigns, judicial campaigns, and that's a great thing. if you are not a fan of citizens united and mchutchen, those decisions, you look at this case and say, uh-oh the clouds are forming, it's getting darker and there's going to be a storm. and i think that's a good way to sort of perceive the way that people on both sides of this debate on both sides of the divide feel about this case. is it going to extend those priorities and precedents? is it going to restrict them? and what are the justices going to say? how different are they going to perceive the judicial election from the regular election? the final, just note i want to make before we begin is you know, it struck me as i was reading this you know, we're taught, we've been taught our parents, grandparents were taught beggars can't be choosers. to me this is a case where the choosers are the beggars. and the people who choose who lives and dies, who chooses who goes to prison, who doesn't, who wins a case, doesn't win a case are begging for money. and i think that's also a useful way to look at this. and to figure out how serious this supreme court is about money of speech and the first amendment in a different context. those are my brief opening remarks about this fascinating case. and i'm going to begin to introduce our speakers. the idea is they're all going to speak. matt's going to give some specifics of the case. then folks are going to speak. then they're going to attack each other with a great deal of vitriol. and you guys will be able to ask questions of them. to my far left we have scott gratac, a policy council and research analyst one of the co-hosts of this along with the brennan center. scott is relatively new to justice at stake but brings with him credentials that are pretty impressive. and over and over again, he has shown he's involved in these sorts of organizations and this notion of the intersection of civil rights and law. so he's going to offer his perspective. to my left, and i've wanted for decades to say this, to my left is ed whelan. just sounds weird. many of you know ed. ed is a fantastic columnist. he was part of the justice department a decade ago. he has served on capitol hill as general counsel to the judiciary. he was a clerk to a ninth circuit judge, harvard, harvard law school, most of you in this room, i suspect are familiar with ed's writings and with his views. he's also the president of the ethics and public policy center. and i'm very much looking forward to hearing his perspective on this. to my right is tracy george who is a professor of law and political science. she's probably also delighted at the weather here in washington, although it probably can't be much warmer there, right? >> right. >> right. >> so she is a professor who brings a broad range of expertise to this topic. federal courts, illegal education. she's written numerous articles about the federal judiciary and the courts. and teaches a course that i would probably want to take if i were at school there, life of the law. which is seems pretty interesting and probably isn't as boring as most law courses could be. and then to my far right is matt menendez who is counsel at the brennan center, one of my colleagues. he's part of the democracy program there. he basically works on the concept of fair and impartial courts. he was formally a partner at gibson, dunn and crutcher. do they still call it that? okay. the names of these big firms change often. and i've been out of it for a while. he worked in washington as an aide to senator john d. rockefeller. and obviously knows a great deal about this topic. and in fact, he is going to be the person who is going to initially take us through some of the details of this florida case, give us a little bit of context and perspective before we begin with our remarks. in the interest of brevity, i'm going to turn it over now to matt and let him dazzle you with his detail. >> thanks, andrew. and to be fair, i was an associate at the firm. they never gave me shares. so i will try and keep this relatively brief, and then we can use the question time to get into areas which may interest people more. as a general background there are 39 states that use elections to fill at least some of their judgeships. and as we know, elections cost money and judges like any other candidates need to raise money. of the 39 states that elect judges, 30 of them have some sort of prohibition on personal solicitation that limit the ways in which judges can themselves ask people to contribute to their campaigns. of those 30, 22 states have relatively broad prohibition such as the one at issue in william julie in florida which prohibits all forms of personal solicitation, such as the solicitation that the petitioner in this case sent out. it was a mass mailer saying i'm running for judge, please contribute to my campaign. in this case it did not actually result in any contributions. so, from the perspective of coming at this issue this is maybe not the ideal case to test the core of the issue of whether a judge walking up to a lawyer or litigant who has business before them right before their case starts outside of the courtroom and says hey, i noticed you haven't contributed money to my campaign yet raises concerns. so i think we believe this is a little more towards the outer edge of where the -- this comes from a judicial code of conduct, which we call the cannons, the primary means by which the judiciary regulates itself. one of the questions that i get asked a lot is why did the supreme court take this case? and i think the main reason is that there has been a pretty stark circuit split of federal courts that have considered this this four courts of appeal have struck down some sort of -- some version of this cannon is unconstitutional, two federal courts of appeal have upheld it as constitutional. and all four states supreme courts that have considered it have found it constitutional. and i do think it is interesting to note that the state courts which are more familiar with judicial elections as opposed to the federal courts which are the lifetime appointment under article 3 seem to be more sympathetic to efforts to minimize the appearance of impropriety that can arise from judges directly asking for money. it's an interesting case, as well. the first time the court has considered regulations of judicial campaign conduct since 2002 when they decided the republican party of minnesota versus white. and that 5-4 decision by justice scalia, struck down a code of conduct that prohibited judges from discussing disputed or controversial issues that were likely to come before them once they sat on the bench. a wide range of topics they were not permitted to talk about. in the majority opinion, justice scalia emphasized it. if you are going to have elections for judges, his view was you could not deprive the voters of the most salient information they would want to know in order to select the best candidate. and my question here is the limit on speech is very narrow. the only thing that a judge can't say is please, give me money. they can talk about their credentials, they can talk about their judicial philosophy. the only regulation on speech is that the ask has to come through a candidate committee. so one of the main things that we will be looking to see is how the court conceives of asking for money as being close to the core or near the outer fringes of what the first amendment values that we look to protect are. a couple developments since white that are notable that we have seen a massive increase in the spending and judicial elections and scott will talk more about the money spent and how the public views that. the other development of note was the supreme court decided a few years ago, and in that case it was established that spending in judicial elections can raise serious due process concerns to the point where it is constitutionally impermissible for a judge to hear a case involving somebody who has contributed to their campaign. one other thing i would like to note is that restrictions on the speech of judges and lawyers it's not really a rare thing. there are all kinds of things that judges and lawyers aren't permitted to discuss. you can't have ex parte communications between judges and lawyers. you can't reveal the contents of sealed hearings. there are a lot of limits on judicial conduct in terms of the boards they can sit on and fund raising for nonprofits and other things like that. and that's just to say that this is not some aberration in regulating what judges and lawyers can talk about. >> thanks. you're up. >> i'm happy to be here today. turns out it is very cold in nashville. but in nashville we just close. all the public schools private schools, everything is closed today in nashville, the temperatures that are slightly warmer than the temperatures in d.c. today. i asked questions about the decisions, courts and judges make and why they make those decisions and i answer the questions by using statistical, empirical methods, right? that's what i do. i'm one of the members of -- one of the in a brief filed by empirical scholars and law political science and economics. and political science. i also teach law. and one of the messages i give students the first day they're in law school is about the substantial power we give to judges. and, in fact the most substantial power really is given to trial judges like ms. williams. trial judges make decisions with very limited oversight. they have discretion about what for most individuals are the most important events or interaction they'll ever have with the legal system. am i going to be released? what is the sentence going to be? what's going to happen if my partner, ex-partner fails to pay child support? very significant life decisions in the hands of these judges. and our ability to monitor these judges once they're in office is pretty limited right? very few cases are reviewed on appeal. of those cases the vast majority are affirmed. while trial judges are not that visible to most of us most of us are focusing principally on the highest courts and states in and in the country, in fact, for the average citizen, they are the law. and as a consequence, we should be particularly concerned and interested in the rules that govern how we choose trial judges. on the relationship between judicial selection method and judges and their behavior. so a substantial and growing body body. federal judges have always been chosen for life tenure and an appointment with confirmation. presidential nomination with advice and consent of the senate senate. empirical scholars have found that there is a strong relationship between campaign contributions and judges voting. these studies specifically demonstrate that the identity and the interest of donors impact the decisions that judges make. that is money biases. whether consciously or subconsciously the recipients actions. let's look at a few examples. business related disputes. it found the greater the contributions. both the fact of contribution and the quantity of the contribution from business interest the higher the probability that a decision would be favorable to those businesses and businesses in general holding other variables constant. the impact of $1,000 contribution is a .35% to .69 percentage point gain in the probability of success. the single largest donors in state supreme court elections. other cities have revealed a relationship between the identity of law firms and the type of firm and the decisions of judges on state supreme court. so by type of firm here, i mean if plaintiff side firms, so trial lawyers, groups, or firms that often here we're talking about complex litigation firms donate to judges. judges, those judges are more likely to supreme court plaintiffs in mass litigation. law firms who contributed to judges campaigns gained better rulings and disputes about arbitration decisions. they also were more likely to win appeals in tort suits. businesses and law firms are the largest source of contributions for judges based on the data you have available. when contributions rise. and it's not merely the fact of donations, it's the amount of money. research has shown that the donor who contributed more to the judge's campaign would be more likely to succeed. now, these studies as most empirical research does, trying to demonstrate from the contribution to the behavior. right, think about studies you're already very familiar with of the behaviors of members of congress. if the donors are affecting what members of congress do? or donors are good at picking members of congress who are likely to support their decisions? and empirical researchers have tried to hone in on that question. and specific research has shown that the theory that the direction is from donor to judicial behavior has support in some specific ways. so, for example, studies have shown that judicial behavior changes as elections draw near. so as the fact, whether you continue in office or not or pick an opponent in contested elections makes more salient the effective decisions on your future. you change what you're doing. then you reset back after the election is over. so they're more likely to hand down stiffer sentences in criminal cases as re-election draws near. they're more likely to support prosecutors and criminal procedure disputes, and they are less likely to grant reprieves in capital cases. if you focus on donors and donors perception about the direction of causality. donors have given to judges who did not previously support their position. donors have given to judges who face no opposition. finally, and i think this is in my view one of the most persuasive findings. judges' behavior is different if they don't face reelection. most states have some sort of mandatory retirement. judges who won't be facing re-election because of mandatory retirement are not affected by past campaign contributions whereas judges who do behave differently. i'm happy to answer more questions about this or the amicas brief we filed but that's an overview of the research. >> thanks, tracy. ed, you're up. >> thank you andrew. thanks to all of you who have been here. i think i've been asked to be on this panel in part to be contrarian. see if i can do a little bit to achieve that goal. i find this to be a difficult, interesting case. i don't think contrary to andrew's take that one's view is on citizen's united and dictates a view on this case. let me highlight just a few issues here. one is the whole question of what the standard of review is that applies in the case. all parties reporting to adopt strict scrutiny as they acknowledge there's some possibility of something called closely drawn scrutiny lower standard that might instead apply. i think this debate between these two standards illustrates the incoherence of the court standards of review altogether. but when you look at the florida bars case it's brief, it's difficult to see that it is applying anything remotely like strict scrutiny. we see talk of the state may reasonably conclude, has wide discretion could reasonably have believed. there's a one-threshold question. what standard of review does apply? i actually think the florida bar has a good argument that the brennan center develops nicely, which is that person to person solicitation presents special dangers of the quid pro quo or the perception of quid pro quo arrangements. now, it also happens, i think, that personal -- person to person solicitation involves special powers of -- it's more likely to result in favorable responses to fund raising requests for reasons independent of the quid pro quo possibilities. any fundraiser would tell you, you want to have your principal make the ask because of the human reluctance sometimes to say no. difficult clash, i think, of these two points. that said as matt pointed out, the particular petitioner in this case who has been penalized below, william julie did not engage in anything that could be called person to person solicitation. she sent out a single mass mailing. that says something about the power of mass mailings. something i've learned about the hard way, as well, with my own organization. i think there's a good question whether the court will even address this broader issue, whether this rule against personal solicitation by judicial candidates is constitutionally permissible, or not. it's possible, in other words, that the court might say indeed, i think some of the parties -- i think the aclu urges this. that whether or not this general rule violates the first amendment, it can't constitutionally be applied to ms. williams julie because the conduct she engaged in was nothing of the sort that implicates the quid pro quo concerns. might dismiss the case as granted. precisely because it doesn't provide an opportunity to resolve this clash. thad be unfortunate. it would mean that she would -- her loss would remain in effect even though the underlying reasoning of the court would be so clear that she wins. we don't decide the broadser issue. the court says it takes, in order to -- >> she didn't win the election, right? >> right. >> she lost the election and lost the case? >> now i emphasize all my views on this case are tentative. the reply brief hasn't come in yet. the aclu i believe, and it's brief. and points out the experience of other, some ten states or so that have judicial elections and don't have this bar with personal solicitation candidates suggests there is no compelling need for this. the last point i'd like to make in an effort to be provocative is that i think there's a tension between the brennan center's position that judicial, the judges are so fundamentally different from legislators. and the general view of judgment that's been offered by many on the left that judges really are just legislators or super legislators. and they ought to be encouraged and invited to indulge their passions and their values. as president obama said in his notorious statements setting forth the empathy standard. hard cases can only be determined on the basis of one's deepest values, one's core concerns, broader perspectives on how the world works and the depth and breadth of one's empathy. if that's the view folks on the left adopt. and i don't think the position they're arguing that judges are fundamentally different from legislators coheres. again, that may go less to the merits of the case, how it should be decided into the incoherence of some of the views on the left. so with that, i'll hand it over. >> thanks, ed. >> thanks. >> other fair courts issues, as well, and also shedding light on brand new polling data that we have that shows the impact that these personal solicitation bans have on public confidence in the courts. i think from the 30,000 foot view of the case is important because it's a good reflection of this new judicial culture that we've been talking about to some extent. it's a culture where judges are being forced to raise vastly more money than ever before which is in turn becoming somewhat of an arm's race between these judicial candidates. when these candidates become elected, they find themselves often times trapped in a culture that then perpetually challenges their ability to be fair and impartial. to this extent the case is a good reflection of this because it comes out of florida. as we've said, florida is one of the 39 states where some of the judges are elected. this puts the candidates who run in a challenging presumption when they're campaigning. on one side, they have to be because they're elected representatives reflecting the best interests of their community, interests sometimes sending in a lot of money to these campaigns to get their views across. while at the same time, having to remain entirely impartial and independent. this tension created a series of major problems at the florida supreme court back in the 1970s. three former chief justices in the florida supreme court, or past presidents at the florida bar association have written the court a brief on this case to tell the story of how florida's ban didn't come about because of some hypothetical conjectural concern about ethics. it wasn't something that their political leaders read about in national headlines. it's because in the 1970s a full majority of the florida state supreme court, 4 out of 7 justices had to resign over corruption scandals. these were scandals that involved the justices intimidating lower court judges attempting to overturn bribery convictions for campaign contributors. allowing contributors to ghost write opinions from the court. and probably the most high-profile case of a justice flown out to las vegas by a dog track owner that has a case in front of the court and a reporter from the miami-dade area follows the justice out to vegas and gets a shot of the justice on the dog track owner's money, rolling the dice at a craps table while the giant cigar is hanging out of his mouth. so these are the issues that led florida's political leaders to talk about personal solicitation bans. but the importance of these bans didn't fade away with those corruption charges. and with the scandals in the '70s. new polling that justice at stake and the brennan center have collected from last month demonstrates the importance that personal solicitation bans still have today. and it's not just in florida. so in the past polls from justices have shown about 95% of people think that campaign contributions affect judicial decisions. even more worrisome, half of the judges agree with this statement. but our new polling goes further than this. data from last month that reflects voters' opinions from all 39 states that elect judges in some level of judgeship show these bans are effective at maintaining public confidence. 60% of respondents said their confidence in the courts would be lowered if judges were able to solicit campaign contributions. 63% of this group 81% said their confidence would be lowered a great deal. i think that data like this make it very clear that personal solicitation bans, in particular, do have a real impact on public confidence. and show that there is a real measurable value in prohibiting judges from asking for contributions directly. so i'll close by saying that while these bans are important for fair courts issues florida knew it then and, as polling shows, a majority of people still think it today. these bans are still only one part of a much larger solution a much-needed solution. keep in mind that florida's ban was passed in the mid-70s as part of a complete reform package. the crown jewel of which was the fact that florida changed the way that it selects its supreme court justices. it went from a direct election system to a system where candidates were evaluated based on merit and then ultimately appointed by the governor. this is known as merit selection and it's used in about 24 states and also here in d.c. so i think that overall the case presents us an opportunity, a window into some of the broader issues facing fair and impartial courts, including how we select our judges. in this culture of high spending, special interest influence judicial elections, more and more people judges state advocates academics political leaders are realizing that something's got to give. more and more people are realizing that perhaps the idea of electing judges is becoming a broken idea and that the correlative notion of this is something that's going to fix itself is becoming harder and harder to believe. >> thank you, scott. to my left is -- has been writing some notes to himself. and i'm going to give ed a first shot and we'll just go in that order to respond to any of the comments you've heard from scott or anyone else. >> well, really just to keep track of what people are saying. not necessarily to disagree. and i think tracy you know raised the important question of the direction of causality. in terms of our contributors finding folks who are going to be as a matter of judicial philosophy sympathetic to their perspective. or are the judges being influenced by the contributions? i think that's a very difficult issue for the inexact art of so-called political science to detect. but starting to be interested in what some of these studies have to say. i will just say one comment. matt talked about the fact that there are other restrictions on judicial speech, that's surely true. what the distinction here, i think, we're talking about speech related to campaigns. and i think that is different from all of the other examples that he cited. so, if anyone has any comments on that -- >> i thought, ed, you raised some interesting points. and putting aside broader notions of judicial philosophy in how we select those. i do think left to right there's generally broad agreement that the nature of the judicial office differs from legislative and executive positions. i think this is particularly important. regardless of how you view the democratic process in the other branches of government, how responsive you expect your governor or state legislators to be to their supporters and the people who got them into office for a judge in terms of the parties before them. it is flatly unconstitutional to favor one party over another because they supported you. you are required to apply the law to the facts of the case and not favor one party or another. and one of the main questions here is, with the nature of the judicial office differing from executive and legislative positions, can we regulate judicial elections differently to account for the due process concerns that are raised by the judicial office. and i think one thing to tease out and make clear in this case, there are two -- and ed spoke to the standard of review. and regardless of the level of scrutiny that it supplied, one of the questions is whether or not there is a compelling state interest at stake that allows the government to regulate. and here there twor state interests at stake. one is impartiality. that goes to the studies, whether or not there is bias introduced into the judicial process through campaign contributions. and the other and i think equally important is the appearance of impartiality and the public confidence in the courts. and that gets to the polls and the studies that scott was discussing. the court the supreme court has emphasized over and over again that the judicial branch depends critically on the public's confidence in the courts. the old adage, the executive has the sword, the legislator has the purse and the judiciary has the public's trust. and when we see these very high numbers indicating that the way these elections are happening now is undermining the public's confidence that courts are, in fact pair and impartial. i think that raises important concerns above and beyond whether or not judges actually are favoring contributors over noncontributors. >> tracy? >> i would just speak to -- i want to speak to a couple of things. one, i want to build on some things that both scott and matt said about florida in particular. i think to the extent you want to understand the rules in florida. you need to appreciate that florida is not unique in the amount of change that there's been in the methods of judicial selection. so while we're accustomed to the federal courts of course, have been the same since the founding. there's been dramatic change over time in the states in terms of how they choose their judges and how they regulate those methods of selection, including things like the candidate issue here. and these were not experiments for no reason. they were born out of specific crises that the courts like the courts in florida faced of corruption and bribery and the like. so we should think about this cannon in the context of states struggling with real problems they've had. beyond research like the research i've talked about that finds relationship that might be more subtle and not readily reserved. and not necessarily conscious. it's just the inevitability that if you ask for money from someone and they give it to you psychologists identify this as a sense of debt or obligation and you feel like you must do something for that person in return. the second thing i want to mention is then speaking about in particular the personal solicitation because ed raised this. i think it's a very interesting question, to what extent do bans on personal solicitation do much work? is it merely campaign contributions and not the method by which you get them that's significant? and we don't have empirical research that tries to hone in on that distinction between any contribution and whether the contribution is the request of -- in response to requests. but there is, of course, a lot of psychological literature like that. i mentioned that when you ask for something and someone provides it to you, you do feel a sense of obligation to that individual. and i think the judges, most judges that i've spoken with and this is quite informal would say they're very happy about the personal solicitation ban because of situations like the one hypothesized of asking people you know appear in your court on a regular basis to give you money for your campaign. so the personal solicitation ban strikes me as a relatively modest attempt as scott characterized it to try to regulate the effective campaign contributions on the behavior of judges. >> i have a couple of questions i'm just going to throw out. and my fellow panelists are free to answer them. first of all, i haven't read ever brief. but one of the initial questions that springs to my mind is where is sandra day o'connor? has someone gotten to her? and has she presented her opinions which we think we know about this case? i mean she has dedicated her post court life to the idea of you know judicial selection. and has warned about the dangers of judicial elections. has somebody corralled her and asked her to chime in? >> i haven't. >> ed hasn't. >> i believe that she is writing circuit in the ninth circuit. it would be improper for her to comment on this case while it's pending. i will note that she was one of the five judges, justices in the majority in the white case in 2002. and in an interview subsequently several years later, she was asked after she stepped down off the court if there were any decisions she regretted. and she mentioned white as one of the cases where she felt that she voted the wrong way. and explained she was concerned that the case contributed to the increasingly messy atmosphere of judicial elections that we've seen. so i wouldn't purport to speak to her. but i think it's safe to say that she has said repeatedly she's very concerned about state judicial elections as they're currently kukts lyly conducted. >> one of the circuits that's split with others? when we talk about that? >> yes -- >> clear split. >> well, there's an interesting case called wolson versus kin kinkanon. and i actually thought that case would have been a better candidate for supreme court review in which a three-judge panel struck down five codes of judicial conduct. not only the prohibition on direct solicitation, but several limitations on what judicial candidates can do to campaign with other political figures. there are limits on joint appearances, on making fund raising appeals on behalf of political candidates. and the opinion was three judges, three opinions, three completely different approaches to the case, really showed how courts are struggling to grapple with these issues. and shortly before the supreme court, the ninth circuit had agreed to take that case and vacated the opinion. so there was a three-judge opinion out of the ninth circuit that struck this cannon and others down. but it had yet to be reviewed by the full panel. and they have now staid that case pending resolution of william julie. >> some of this discussion is focused on a particular case. some has addressed the broader issue of judicial elections. on that broader point i just want to emphasize every method of judicial selection has its advantages and disadvantages. and i think it'd be important to sort through what those are -- what i find a little odd about those who oppose judicial elections at the state level is they tend to favor the so-called missouri plan merit selection, rather than something modeled more along the federal plan. that is the -- the missouri plan gives a tremendous amount of power to local bar groups to i think there could be some variation from state to state. i'm speaking generally here. but to present a slate of three or five candidates to the governor. and the governor has to select from those candidates. i think the federal model where the executive nominates and a body confirms is much more appealing than this missouri plan. but, again, my broader point is any system you can look at the incentives and disincentives it has for judicial candidates, you can see advantages and disadvantages. and you focus and emphasize its flaws, you can ignore that others have their vulnerabilities, as well. >> just to put a bow on it. the senator has put out a plan, recommended plan of how to select judges. while it retains an election element, there are elections after a judge or justice is appointed, she's put her name behind a plan that gets rid of the direct election of judges. >> all continue to sit as an active judge on the courts below, which is something remarkable that raises its own questions of judicial ethics. >> another question i had as i was reading through the briefs was this argument for the folks who support overturning the ban who contend it's so underinclusive. it's so measly in the attempt to prohibit this practice or to solve this problem that it's unconstitutional. so that, you know you ban the direct solicitation but the campaign manager, right, can solicit. and you, you know, the candidate can basically get around the information, the candidate can get the information about who donated and so forth. >> write thank you notes. >> yeah. right. and, you know, as you read through them, you begin to realize that on the one hand florida says look we really have this problem we need to solve and here's how we've chosen to solve it. and on the other hand, you look at it and you're like well, it's not much of a solution. there are so many sort of weasely ways around it, it really is no solution. i guess if question i have is, is florida at the vanguard of -- is this cannon the most aggressive in the nation? are there other states gone beyond what florida has done to more aggressively prohibit the direct campaign contribution? and how do you think the court is going to -- how do we think the court is going to look at this underinclusiveness issue? >> well, there are states that do go further. there are states that prohibit their judges from even learning who contributed to their campaigns. i think one of the issues with, you know trying to prohibit the additional elements that you mentioned with underinclusion was in practice that could be a very difficult thing to do. the nice thing about florida's rule is it's fairly bright lined, it's easily administerable, there's a lot less work going into enforcing it. in terms of the personal solicitation, i think ed made a good point that it is more effective to have your principal ask. and i think particularly when the principal is a judge, there's an element of coercion that whether intended, or not, is felt by donors. and in some of these cases that have come up at other levels, there have been business groups that have weighed in and said one of the reasons they support the personal solicitation ban is it's much easier to say no to a campaign manager than it is to a judge. and i think that and one other thing that i think that is interesting is that one reason many campaign finance restrictions are struck down is that the court is suspicious that they're not really about getting rid of corruption. that they're in practice incumbent protection. and i think this is an interesting provision where certainly a nonjudge candidate would in many cases like to make a direct solicitation. but i think it's particularly coercive for a donor to be asked directly by a judge that they are likely to appear before. and i think this is a provision that is unlikely to be a wolf in sheep's clothing, that is really about protecting incumbents rather than trying to protect the judicial integrity. >> and if you look at the bigger picture. about half of all campaign contributors are lawyers lobbyists, business interests. so these are the folks who are giving to the justices in the first place. when the code was put into law in 1973, about 20% of disciplinary actions that have you know, judicial ethics related actions have been related to personal solicitation bans. have they been directly tied to this provision. if you look at why it was put in in the first place, there were three campaign contributors convicted of bribery on a lower court level, a justice tried to intervene and stop the bribery charges. the case went up to the florida supreme court, the justice sat for the case heard the case and voted to dismiss the bribery charges. so there was a direct solicitation there. another example, there was a golfing friend, a golfing buddy of one of the justices who personally asked if he could write the opinion about a public utilities case going in front of the court. so i think florida properly identified these were cases that can be tied to face-to-face contact. the importance of cutting and severing that, you know, personal element to the relationship was critical. >> one other question, and then i'm going to turn it over to you guys is the issue of recusal. the folks who, again, want to get rid of these sorts of ethics rules say, well, the obvious and easy thing is to promote recusal, right? the judge who is -- who becomes known as taking money from a donor, the donor comes before her or him the judge has an obligation to recuse. and that should be the method by which we solve this problem. my view is the recusal is a broken concept that far too few judges recuse themselves when they should. but i'm wondering what you think the issue of recusal how it's going to play out either in the oral arguments or in the decision itself. is that going to be what the supreme court grasps on to as it says we need to do something? >> if they do, it would -- at the very least be ironic. i would say while we -- at the brennan center believe recusal is very important. we do agree there's a lot of room for improvement. and we have several room for proposals for ways to strengthen recusal practice. one of the concerns and it's a fair point. and his dissent, he goes through a very long list of questions that show that at the very least can be a messy process that is difficult to carry out with precision. i think when recusal is obvious, it can be pretty easy to administer. but there are many marginal cases that are really tough questions. and as you mentioned, in many states judges rule on their own recusal motions. and the standard of review is often extremely deferential. so in practice there's never an objective review of a recusal motion. . importantly, it's a case-by case basis. and when we're talking about the public's confidence in the courts and how it impacts that, that is a systematic problem. and a case by case solution is not going to work. and, in fact, this was another point, and recusal ironically can weaken the public's confidence in the courts in some instances. if they think judges are too partial to sit on a case and have to step aside. >> i want to get tracy. >> yeah, so i think recusal it's often the normative punch right on studies that show relationship between campaign contributions and judicial decision making. but it's simply impractical. let's deal with appellate courts separately from trial courts. it's impractical for appellate courts here. one is that the effect of business contributions so be more favorable to all businesses. so recusal cannot change that impact because it may not be the specific business that's in front of you but rather the fact that you have a large number of business donors who will care about your decisions with respect to businesses is simply going to make you support any business that appears before you. recusal doesn't fix that. in fact, the principle of a common-law system is that judges decide a very small number of cases explicitly but effectively decide many more cases, right? they're highly leveraged institutions. you look at the u.s. supreme courts deciding fewer than a hundred cases a year. we obviously know their impact is much broader than that. you know a decision you make in a particular dispute is going to affect businesses, law firms, lawyers that face similar issues. so recusal really can't get at the underlying problem at an appellate court because appellate courts make law and are going to decide cases that don't affect merely the parties before them. i think on a trial court level the problem is it's simply impractical because we wouldn't have any judges to sit in certain cases. if you're a defense law firm, you represent criminal defendants in a particular trial court. you're going to donate to all of the judges that you think have a chance of being elected in order to ensure they're favorable to you in a particular case. can they recuse themselves from -- if all those judges recuse themself, who is going to hear the case? that certainly would be in a court like ms. williams-yuleev was running for in limited jurisdiction in florida, you're talking about repeat player lawyers contributing you simply would rule out any judges. recusal i think sounds good in theory. matt has already done a great job showing how it has all kinds of other problems but for appellate courts and trial courts it is not realistic. >> i also don't think much of recusal as a very effective means of addressing any problem that exists. i'm not sure, i think tracy is thinking that it anyone who contributed triggers a recusal which strikes me as a rather extreme measure. perhaps there could be alternatives. but i guess a broader point would be i agree with andrew that i think judges don't recuse as often as they should. i think we probably disagree on which examples we would cite, but that may illustrate part of the problem but there is also a culture among all nine supreme court justices that they're not going to be second guessing each other's nonrecusal decisions that this is something that you know, that the confident each gets right. so they may have greater faith in the effectiveness of recusal than i think the rest of us do. just one last point i mean, tracy, you seemed more agnostic before on the causality when discussing the effect of campaign contributions from business and most reisn'tly you seem to be adopting a particular view of the directional causality. so -- >> it's because she's sitting near matt. >> well i would just say the study that i'm thinking of that looked at business decisions was the one that did the bess job of demonstrating causality. but you didn't say this, but i think it's a fair statement, any empirical study is defined by the population of cases it's looking at right it's a sample. i would be first person to say that we can only then draw inferences from the sample. so the study i'm thinking of did the best job of actually isolating causality. but i don't want to be taken to mean that judges are behaving necessarily unethically or knowingly if they're favoring particular interests. i think that it's human nature, this reciprocity principle and that's the concern. >> now you folks have been waiting patiently as we've droned on here. now it's your turn. i've been reminded 17 times that you have to have a microphone in front of you when you ask your questions. i was actually apprehended briefly before this and told to remember. so if you would raise your hand we'll get the microphone to you you can ask your questions and we'll do our best to answer them. >> mark sherman with ap. i just wondered if maybe with the exception of ed, if 95% of people are persuaded that contributions make a difference in judicial decisions and if the empirical evidence also suggests it, then why do so many states elect judges and why has there not been just a wave of states going away from that? >> i would like to -- do you want me to take a first crack at it scott and then -- >> i think historically there have been adjustments to these sort of problems. states have had particular situations like in florida that would cause them to be more responsive to these issues and to change ways of limiting outside influence special interest influence but for the most part i think that this issue, while the polling says that people are concerned about it it's not something that people get energized about. if you ask the average person they might not even be aware that judges are elected in their state and judges typically down ballot are not getting the attention that issues closer to the top are getting. so it doesn't mean that the need isn't there. it's just that perhaps reforming things procedurally have always had more of a hindrance than some of the more high profile issues associated with it. and it's a difficult thing to connect to people. >> i can add a little historical context. the longer story there is an interesting amicus brief in this case filed by judge shugarman. you can read it on the blog or on the website. in a nutshell, this goes to a point that ed and i endorse that there is no system to picking judges. in the 1800s, most states used a federal model. one of the weaknesses of the federal model is it can be conducive to cronyism where executives are more likely to pick their friends and close supporters necessarily than perhaps the best judges. and the age of machine politics in the 1800s saw just a proliferation of party hack judges, and the reaction was to move to judicial elections as a way to try and take power away from those machines and to make the judiciary more independent from the other branches. >> progressive reform, undoubtedly, right? >> right. and every reform spurs counterreform. and there's an evolving process. so elections were very much an attempt to promote a more independent impartial judiciary. they are largely a historical vestige of their time. >> tracy? >> i just agree largely with what people have to say. every selection method impacts judges' decisions elections were, as matt noted adopted in an effort to try to check the abuse, perceived abuse of the appointment process. i don't think it was merely perceived. the evidence is pretty strong on that. but in terms of the specific question of why don't voters then change the method of selection, what's interesting in the florida case since that's the case before us, is they did change the method of selection for appellate judges. they went to a form of the merit selection with retention plan but not with trial judge, not with the judges that they think of as the judges in their lives. and i think that's pretty interesting. to try to understand if voters feel that this tension between accountability and impartiality is one that they would like to resolve when the judges are closer to where they are. what's disappointing of course, is that judicial races are low races, we know individual voters know very little. they're least likely to vote in judicial races. so i think in terms of answering the question why do we retain judicial elections i think it's because of the ideal of accountability and the challenge is, that, of course, we don't really have that in the races generally, but i certainly agree with ed that there's no perfect system and no perfect judges even if we had a perfect system. yes, sir give us a sec. >> hi i'm with transparency international usa. i had a comment and a question. the comment is based on the fact that i began my legal career as a state prosecutor if miami, florida, and i think it sort of goes to what andrew said earlier that my experience was -- i don't really feel it makes like a huge difference whether the judge directly asks or whether or not there's a campaign committee. the practice in miami, which is the largest, most populous jurisdiction in florida, is that the legal community is still fairly small and campaign committees would organize you know, fund-raisers, oftentimes at bars and all of us prosecutors who made 30,000 or $40 hss this a year would come for the free beer and the defense attorneys would come to contribute. i think in the criminal side of things where i was practicing -- and this is my question for tracy. you had mentioned you see particularly closer to elections judges sort of become more law and order focused. and yet the prosecutors are not the ones donating the money. and so i sort of have a question as to how that actually works. because we don't have any money to contribute. it's the defense bar that has a fair amount of money. so i can see sort of on the civil side where certainly money may play a larger role, but the criminal side i sort of have a hard time seeing how those studies would actually validate the suggestion that the campaign contributions do have an impact, but as a more general matter it would seem to me that there's very little actual distinction especially sort of county levels where everyone knows everyone and the judge can look at the list of who's contributed. it doesn't really matter whether or not it's the campaign committee that asks or the judge that asks, the judge is going to know at the end of the day who his friends are and who are not his friends. so i'm curious again, sort of why, you know, there has not been more of a move to, you know -- florida passed these laws to solve this problem but it doesn't seem like this particular law solved the problem and especially when you thing about the massey case, i think there was a trip to the south of flans involved in that one, too. so the issue seems to be not so much the direct solicitation but the campaign contributions. >> the criminal defense or the criminal case findings are not as direct in effect as the effect in cases involving law firms and say tort suits mass litigation businesses and business disputes between individuals or businesses as defendants in tort cases. in those cases the hypothesis is and what they're test is a direct effect. a business gives, a law firm gives, it does better in court subsequently or similar firms, similar businesses do better in court subsequently. behind criminal's rights is instead that if a business wants to oppose you or a law firm wants to oppose your re-election, typically the best argument to the public is not you're against the position that favors my business favors especially if you're a plaintiff's lawyer favors plaintiffs' lawyers, the best argument is you're not law and order. this is in fact, what we see. so the funding behind campaigns to unseat judges is funding from entities typically indifferent to criminal cases, but they recognize that the best ad is about a criminal case. that's the theory behind it because you're certainly right. prosecutors are not substantial donors to judges and many states are not allowed to donate in fact to judicial campaigns. >> i just want to add something. one of my colleagues at the marshall project christy thompson just did a long piece last month on this issue judicial elections in the campaign ads that rise up against them. and you're dealing with one of the most cynical components of campaigns and especially judicial campaigns. and the idea that these business interests who care about tort reform or who care about jurisdiction or liability or other issues aren't going to come to consumers of news and television and papers and say, you know, let's band together and reduce the liability. they're going to come and say, you know this judge is soft on child sex offenders. and, you know, those ads are more and more pervasive even as there is this countermovement in this country i think, to be a little bit more sensible about crime and the dramatization of crime. that's going in one direction, these ads are going in the other direction. obviously they're effective because they're pervasive in all of these states. if they weren't working they wouldn't be happening. >> as to why states are barring only solicitation by a candidate rather than also by these committees, correct me if i'm wrong, but i think this is the aba code proposal and reflects an understanding of the first amendment concerns would be far more severe. >> yes sir. >> we're making an increasingly difficult for mr. microphone man to -- pretty soon it's going to be in the ceiling. >> thank you. bill troy from the aba. i'm drawing this question from memory rather than recent reviews so i may be totally off base. as i recall 2 1/2 years ago judge lipman in new york on a recusal issue put in a threshold of $2500 for campaign contributions for recusal. has that gone into effect and has any of you kind of looked at it and how is that working? >> slightly different. it's not actually recusal. it takes place through the assignment system, so if a judge has received more than $2500 contribution -- and the amount differs slightly based on the level of judges. we elect our trial judges in our intermediate appellate judges and our high court judges are appointed. so if a judge has received that much, the administrative office of the courts automatically assigns the case to a different judge and the judge never even knows that they were potentially getting that case. we are in the process of doing some research on various recusal regimes and trying to figure out ways to assess their effectiveness. so i think it's a very interesting system. it completely removes the discretionary element from the challenge judge. it takes away any sort of, you know appearance that a judge is a judge in their own case and we think it's a very interesting system. >> sounds like quite an incentive to contribute to judges you don't want on your cases. >> one of the issues with any recusal practice is there is the potential for gamesmanship. and that's one of the reasons why it is so effective to design a really effective judicial regime. >> and there are systems that will add that gives the opposing counsel the option of keeping the judge in case they're conflicted. so that's an option. >> an easy one for you. >> thanks so much for bringing this event together. my name's michael beckel, i'm a reporter at the center for public integrity here in washington, d.c. and in terms of this notion of candidates doing the direct solicitation versus their campaigns, judicial races are not something i'm quite as familiar of as say federal candidates running for office. so i was curious how professional are, you know, we've got these 39 states that have different things. you know in all of these cases, are we assuming that there's a judge, there's a campaign manager, there's a pressure or are in some cases some of these races really just sort of one person operations and what's a practical difference versus the dpan campaign making a solicitation versus the judge making this ask? >> while you guys are thinking of a response to that go online and look at some of the websites. i mean, for example some of the justices in texas, some of the websites that they have up are as professional as -- they're not one person shows. i haven't done any empirical studies, but from what i've seen, not just in texas but elsewhere, they're often very sophisticated operations because there's more money available. i mean, it's an investment, right, if you're a judge and you want to stay a judge or if you're a judicial candidate and you want to stay a judge that's part of the price of doing business which ironically is something that the donors are saying, that they want to get something for what they pay for and they expect to get something for what they pay for. my sense is just from writing about it a couple years ago and last year, it's a very sophisticated operation at this point in most cases. >> and i say there is a big difference between states and between races so we've documented many state supreme court races are just multimillion dollar affairs. they are huge sophisticated well-funded expensive operations. going down to say, the case we're discussing today you might have a much smaller affair where not much money is raised and spent in a case and perhaps you could have a very small campaign committee of only a couple people. one thing i would say is it doesn't seem especially onerous to require an aspiring judge to read the rules and follow them. if they are unable to do that, i think we should question their fitness to sit at the bench. >> we've stumped you? no more questions? well, great. we appreciate you being here this morning and listening to us and hopefully you guys have taken something out of this and we'll be around after to answer any questions. friday american university's public affairs institute host a conference including remarks by university president neil kerr win on lobbying and the regulatory process. watch it live at 10:00 a.m. eastern time here on c-span3 and at c-span.org. friends, colleagues countrymen, especially the people of ohio's 8th congressional district thank you for resending me here and let's today welcome all of the new members and all of their families to whatty with all know to be a truly historic day. >> today is an important day for our country. many senators took the oath this afternoon. 13 for the first time. and a new republican majority accepted its new responsibility. we recognize the enormity of the task before us. we know a lot of hard work awaits. we know many important opportunities await as well. >> follow the gop-led congress and see the new members. the best access is on c-span television, c-span radio and c-span.org. new congress, best access on c-span. republican charlie baker has been sworn in as massachusetts' 72nd governor. in his inauguration speech he talked about education and economic development. this is a half hour. >> thank you. thank you. thank you very much. thank you. thank you. mr. president and members of the senate, mr. speaker, members of the house of representatives, lieutenant governor polito, members of the governor's council and the cabinet, welcome, folks. chief justice from the judiciary, constitutional officers, constitutional officers elect, thank you for being here. former governors, well swift, romney former senator scott brown, governor christie governor raimondo distinguished guests angela menino and jen soluchi. i've known and admired you both for many years, and i always really appreciated the joy and the integrity your husbands brought to public service. there were lessons there for all of us. thank you very much for being with us today. to my fellow citizens and other distinguished guests my thanks to all of you for being here. it is with great humility and high honor that i assume the office of governor of the commonwealth of massachusetts. now, i'm well aware of the authority and privileges that come with this office but they're inconsequential in comparison to the responsibility of serving and protecting the people of this great state. and the obligation to always live up to that trust. the people have vested me with the title of governor for the next four years. but i'm also the holder of a number of other life-long titles that i'm proud of. son, brother, husband father and neighbor. those titles have shaped the values and the vision that i bring to the corner office. that bible that bible that i placed my left hand on a few minutes ago is the same one my mother held for my father 46 years ago when he was sworn in as assistant secretary under then u.s.-transportation secretary john volpe, former massachusetts governor. in a moment like this, there's no way to thank your parents for all they've done for you except to say, dad, i love you and mom both. i am very much who i am today because of you, and i wish mom could be here to see this. i especially want to thank my wife lauren. for her love for her counsel, for her sense of humor and her endless support. i knew when we got married 27 years ago that i was a lucky guy. but after 27 years and three wonderful kids, i know that i am truly blessed. on behalf of the people of massachusetts, i want to thank governor deval patrick for his service over the past eight years and wish him godspeed. i want to sincerely thank all our public safety officers, first responders and corrections officers for the work that they do. it's a service that's always challenging and at times very complicated and with very few exceptions these men and women do it every day with great skill and professionalism. i also want to thank and salute all those men and women from the commonwealth who have or are serving in our country's armed forces. since 9/11 -- since 9/11, many citizens of massachusetts have answered our nation's call to service and serve with distinction. and when men and women serve so do their families and we muss never forget that. as governor, these men and women and their families will always be in my prayers. mayor walsh, i want to thank you for giving us this opportunity to participate in this event today in your city. and we wish you nothing but the best of luck in your service on behalf of the people of boston and the years ahead. to the people of france our thoughts are with you during this difficult time. our commonwealth is filled with hardworking, talented and inspiring people. we're a global leader in health care biotechnology, high technology, education finance, energy efficiency and advanced manufacturing. and we've led the way for this nation on issues ranging from health care quality to reform equality. some of our toughest challenges have been ignored lost amid the successes or become the equivalent of kicking a can down the road because they're not politically convenient or easy to fix. from having 1500 homeless families assigned to hotels and motels, dozen of lapses in performance that are frustrating for many and in some cases devastating in consequence. i know we can do better. the time has come to write the next great chapter in the history of this great commonwealth. to build on what makes us great and get much better and what doesn't, lieutenant governor polito and i have created a talented diverse, experienced bipartisan cabinet and staff. they will approach their message with a passion and a thoughtfulness to make massachusetts great, and they understand the policy pronouncements without follow-through amount to empty promises. former mayor tom menino taught us all many valuable lessons. he believed government was about high ideals. but he also equally believed that basic services mattered and that every detail counted. when people have to wait for hours to conduct a simple transaction at the registry, they're not being served. when thousands of families continue to be confused and let down by the health connector, we're not paying attention to the details. those are but two examples. we will challenge the status quo. we will look for and try new approaches. we'll recognize they may not always work and when that happens we'll acknowledge it learn from it and try again. i believe our actions will be heard in many ways but the loudest of these actions will initially be in dealing with immediate budget deficit building a job creating economy everywhere in massachusetts, closing the achievement gap in education and fighting opiate addiction and revitalizing our urban centers. with respect to the state's budget, no one understands better than i do that our constitution requires that it be balanced. that responsibility now rests with us. history will record a budget deficit exceeding half a billion dollars is being transferred to our administration. if we're honest with ourselves, we can't blame this deficit on a lack of revenue. we have to recognize that this is a spending problem and that dealing with it now will make balancing next year's budget that much easier. we will hold the line on taxes we're already demanding enough from our hard working people. and we will protect cities and towns and fulfill our promise to end the cut ss in local aid. otherwise, everything's on the table. we look forward to working with house speaker dileo senate president rosenberg and members of both legislative branches to close this gap. while there are efficiencies to be gained and structural changes to be made there's no doubt we have to make difficult decisions and we will work collaboratively to do so with great sensitivity and careful judgment. but growth is the biggest solution to any budget problem. we have a 5.8% -- we have a 5.8% unemployment rate here in massachusetts. but that's a cold-hearted statistic that ignores the 200,000 people seeking work, the hundreds of thousands of underemployed and the tens of thousands who have dropped out of the workforce altogether. and there's no single initiative that can start and sustain a job creating economy, but there's clear evidence that we're too complicated, too expensive, too slow to move and make decisions and on this we must and can do better. our administration will work to reduce red tape, streamline regulatory requirements on start-ups and establish businesses and we'll report regularly on our progress. health care costs are an enormous burden for everyone. they drag down our collective ability to grow and hire more people. be will pursue many paths on this one, but the simplest insuring full price and performance transparency is long overdue. the same service in the same neighborhood with the same outcome with the same person can vary in price by as much as 300%. this must change. there's also a direct link between economic growth and sustainable affordable supplies of energy. as we begin this new year families and businesses across new england are being hit with unprecedented increases in their energy and electric bill. at exactly the same time energy prices are falling across the rest of the country. this increase is being driven in lark part by inadequate delivery systems, the result of poor planning and coordination. i look forward to working with my colleagues here in massachusetts and the legislature and people like governor raimondo of rhode island and the other governors to solve this problem while we continue to reduce our carbon footprint. now, i'm the proud product of massachusetts public schools, and to this dayic still name almost every teacher i had growing up. they moved me, they challenged me and they made me feel like my opinion mattered. across massachusetts -- go for it. across massachusetts, there are many talented and inspiring educators doing for their students what their predecessors did for me. i was in lawrence yesterday, karen and i were both there, witnessing firsthand the progress that's been made in just a few short years there. and despite all their issues, and they have many, a renaissance is under way in their public schools. attendance is up dropout rates are down. test scores and graduation rates are up. the school day is longer and lawrence is hardly alone. there are exceptional schools in many of our most disadvantaged neighborhoods throughout the commonwealth proving they can get it done for kids no matter what their circumstances. but other schools really do need to step it up. for the children and the families that they serve. poor performance given the dramatic success other schools have demonstrated, can no longer be tolerated. while traditional public schools will always be the backbone of our education system, we need more high performing public charter schools especially in underperforming school districts to complement them. as i speak today there are 45,000 bay state kids and their parents on waiting lists for these schools. 45,000. it's wrong for any of us to stand on a front porch or in a city neighborhood sympathizing with a mom or a dad when they tell us their child's not getting the education to succeed in life that they deserve and then oppose lifting the charter school cap or making the kinds of changes that are being made in places like lawrence to ensure that every school is great. last year, governor patrick called opiate addiction a public health crisis. he was right. it is a crisis. it's one that cuts across every community in the commonwealth. several months ago i met john and stephanie green of easton. after a routine medical procedure their 19-year-old son evan was prescribed opiates for pain. slowly and unknowingly he became addicted to them. when the prescription ended he turned to heroin. over a period of years john and stephanie tried as hard as any parents could to help their son, who was in agonizing yet all-too familiar story. tragically, evan fatally overdosed almost a year ago to this day. now, as a parent, my heart goes out to john and stephanie for their devastating loss. as governor, i intend to tackle this problem head-on because too many families -- thank you.
MiamiFloridaUnited-statesBay-stateMassachusettsNew-yorkMissouriTexasBostonMinnesotaRhode-islandWashington it doesn't really matter whether or not it's the campaign committee that asks or the judge that asks, the judge is going to know at the end of the day who his friends are and who are not his friends. so i'm curious again, sort of why, you know, there has not been more of a move to, you know -- florida passed these laws to solve this problem but it doesn't seem like this particular law solved the problem and especially when you thing about the massey case, i think there was a trip to the south of flans involved in that one, too. so the issue seems to be not so much the direct solicitation but the campaign contributions. >> the criminal defense or the criminal case findings are not as direct in effect as the effect in cases involving law firms and say tort suits mass litigation businesses and business disputes between individuals or businesses as defendants in tort cases. in those cases the hypothesis is and what they're test is a direct effect. a business gives, a law firm gives, it does better in court subsequently or similar firms, similar businesses do better in court subsequently. behind criminal's rights is instead that if a business wants to oppose you or a law firm wants to oppose your re-election, typically the best argument to the public is not you're against the position that favors my business favors especially if you're a plaintiff's lawyer favors plaintiffs' lawyers, the best argument is you're not law and order. this is in fact, what we see. so the funding behind campaigns to unseat judges is funding from entities typically indifferent to criminal cases, but they recognize that the best ad is about a criminal case. that's the theory behind it because you're certainly right. prosecutors are not substantial donors to judges and many states are not allowed to donate in fact to judicial campaigns. >> i just want to add something. one of my colleagues at the marshall project christy thompson just did a long piece last month on this issue judicial elections in the campaign ads that rise up against them. and you're dealing with one of the most cynical components of campaigns and especially judicial campaigns. and the idea that these business interests who care about tort reform or who care about jurisdiction or liability or other issues aren't going to come to consumers of news and television and papers and say, you know, let's band together and reduce the liability. they're going to come and say, you know this judge is soft on child sex offenders. and, you know, those ads are more and more pervasive even as there is this countermovement in this country i think, to be a little bit more sensible about crime and the dramatization of crime. that's going in one direction, these ads are going in the other direction. obviously they're effective because they're pervasive in all of these states. if they weren't working they wouldn't be happening. >> as to why states are barring only solicitation by a candidate rather than also by these committees, correct me if i'm wrong, but i think this is the aba code proposal and reflects an understanding of the first amendment concerns would be far more severe. >> yes sir. >> we're making an increasingly difficult for mr. microphone man to -- pretty soon it's going to be in the ceiling. >> thank you. bill troy from the aba. i'm drawing this question from memory rather than recent reviews so i may be totally off base. as i recall 2 1/2 years ago judge lipman in new york on a recusal issue put in a threshold of $2500 for campaign contributions for recusal. has that gone into effect and has any of you kind of looked at it and how is that working? >> slightly different. it's not actually recusal. it takes place through the assignment system, so if a judge has received more than $2500 contribution -- and the amount differs slightly based on the level of judges. we elect our trial judges in our intermediate appellate judges and our high court judges are appointed. so if a judge has received that much, the administrative office of the courts automatically assigns the case to a different judge and the judge never even knows that they were potentially getting that case. we are in the process of doing some research on various recusal regimes and trying to figure out ways to assess their effectiveness. so i think it's a very interesting system. it completely removes the discretionary element from the challenge judge. it takes away any sort of, you know appearance that a judge is a judge in their own case and we think it's a very interesting system. >> sounds like quite an incentive to contribute to judges you don't want on your cases. >> one of the issues with any recusal practice is there is the potential for gamesmanship. and that's one of the reasons why it is so effective to design a really effective judicial regime. >> and there are systems that will add that gives the opposing counsel the option of keeping the judge in case they're conflicted. so that's an option. >> an easy one for you. >> thanks so much for bringing this event together. my name's michael beckel, i'm a reporter at the center for public integrity here in washington, d.c. and in terms of this notion of candidates doing the direct solicitation versus their campaigns, judicial races are not something i'm quite as familiar of as say federal candidates running for office. so i was curious how professional are, you know, we've got these 39 states that have different things. you know in all of these cases, are we assuming that there's a judge, there's a campaign manager, there's a pressure or are in some cases some of these races really just sort of one person operations and what's a practical difference versus the dpan campaign making a solicitation versus the judge making this ask? >> while you guys are thinking of a response to that go online and look at some of the websites. i mean, for example some of the justices in texas, some of the websites that they have up are as professional as -- they're not one person shows. i haven't done any empirical studies, but from what i've seen, not just in texas but elsewhere, they're often very sophisticated operations because there's more money available. i mean, it's an investment, right, if you're a judge and you want to stay a judge or if you're a judicial candidate and you want to stay a judge that's part of the price of doing business which ironically is something that the donors are saying, that they want to get something for what they pay for and they expect to get something for what they pay for. my sense is just from writing about it a couple years ago and last year, it's a very sophisticated operation at this point in most cases. >> and i say there is a big difference between states and between races so we've documented many state supreme court races are just multimillion dollar affairs. they are huge sophisticated well-funded expensive operations. going down to say, the case we're discussing today you might have a much smaller affair where not much money is raised and spent in a case and perhaps you could have a very small campaign committee of only a couple people. one thing i would say is it doesn't seem especially onerous to require an aspiring judge to read the rules and follow them. if they are unable to do that, i think we should question their fitness to sit at the bench. >> we've stumped you? no more questions? well, great. we appreciate you being here this morning and listening to us and hopefully you guys have taken something out of this and we'll be around after to answer any questions. friday american university's public affairs institute host a conference including remarks by university president neil kerr win on lobbying and the regulatory process. watch it live at 10:00 a.m. eastern time here on c-span3 and at c-span.org. friends, colleagues countrymen, especially the people of ohio's 8th congressional district thank you for resending me here and let's today welcome all of the new members and all of their families to whatty with all know to be a truly historic day. >> today is an important day for our country. many senators took the oath this afternoon. 13 for the first time. and a new republican majority accepted its new responsibility. we recognize the enormity of the task before us. we know a lot of hard work awaits. we know many important opportunities await as well. >> follow the gop-led congress and see the new members. the best access is on c-span television, c-span radio and c-span.org. new congress, best access on c-span. republican charlie baker has been sworn in as massachusetts' 72nd governor. in his inauguration speech he talked about education and economic development. this is a half hour. >> thank you. thank you. thank you very much. thank you. thank you. mr. president and members of the senate, mr. speaker, members of the house of representatives, lieutenant governor polito, members of the governor's council and the cabinet, welcome, folks. chief justice from the judiciary, constitutional officers, constitutional officers elect, thank you for being here. former governors, well swift, romney former senator scott brown, governor christie governor raimondo distinguished guests angela menino and jen soluchi. i've known and admired you both for many years, and i always really appreciated the joy and the integrity your husbands brought to public service. there were lessons there for all of us. thank you very much for being with us today. to my fellow citizens and other distinguished guests my thanks to all of you for being here. it is with great humility and high honor that i assume the office of governor of the commonwealth of massachusetts. now, i'm well aware of the authority and privileges that come with this office but they're inconsequential in comparison to the responsibility of serving and protecting the people of this great state. and the obligation to always live up to that trust. the people have vested me with the title of governor for the next four years. but i'm also the holder of a number of other life-long titles that i'm proud of. son, brother, husband father and neighbor. those titles have shaped the values and the vision that i bring to the corner office. that bible that bible that i placed my left hand on a few minutes ago is the same one my mother held for my father 46 years ago when he was sworn in as assistant secretary under then u.s.-transportation secretary john volpe, former massachusetts governor. in a moment like this, there's no way to thank your parents for all they've done for you except to say, dad, i love you and mom both. i am very much who i am today because of you, and i wish mom could be here to see this. i especially want to thank my wife lauren. for her love for her counsel, for her sense of humor and her endless support. i knew when we got married 27 years ago that i was a lucky guy. but after 27 years and three wonderful kids, i know that i am truly blessed. on behalf of the people of massachusetts, i want to thank governor deval patrick for his service over the past eight years and wish him godspeed. i want to sincerely thank all our public safety officers, first responders and corrections officers for the work that they do. it's a service that's always challenging and at times very complicated and with very few exceptions these men and women do it every day with great skill and professionalism. i also want to thank and salute all those men and women from the commonwealth who have or are serving in our country's armed forces. since 9/11 -- since 9/11, many citizens of massachusetts have answered our nation's call to service and serve with distinction. and when men and women serve so do their families and we muss never forget that. as governor, these men and women and their families will always be in my prayers. mayor walsh, i want to thank you for giving us this opportunity to participate in this event today in your city. and we wish you nothing but the best of luck in your service on behalf of the people of boston and the years ahead. to the people of france our thoughts are with you during this difficult time. our commonwealth is filled with hardworking, talented and inspiring people. we're a global leader in health care biotechnology, high technology, education finance, energy efficiency and advanced manufacturing. and we've led the way for this nation on issues ranging from health care quality to reform equality. some of our toughest challenges have been ignored lost amid the successes or become the equivalent of kicking a can down the road because they're not politically convenient or easy to fix. from having 1500 homeless families assigned to hotels and motels, dozen of lapses in performance that are frustrating for many and in some cases devastating in consequence. i know we can do better. the time has come to write the next great chapter in the history of this great commonwealth. to build on what makes us great and get much better and what doesn't, lieutenant governor polito and i have created a talented diverse, experienced bipartisan cabinet and staff. they will approach their message with a passion and a thoughtfulness to make massachusetts great, and they understand the policy pronouncements without follow-through amount to empty promises. former mayor tom menino taught us all many valuable lessons. he believed government was about high ideals. but he also equally believed that basic services mattered and that every detail counted. when people have to wait for hours to conduct a simple transaction at the registry, they're not being served. when thousands of families continue to be confused and let down by the health connector, we're not paying attention to the details. those are but two examples. we will challenge the status quo. we will look for and try new approaches. we'll recognize they may not always work and when that happens we'll acknowledge it learn from it and try again. i believe our actions will be heard in many ways but the loudest of these actions will initially be in dealing with immediate budget deficit building a job creating economy everywhere in massachusetts, closing the achievement gap in education and fighting opiate addiction and revitalizing our urban centers. with respect to the state's budget, no one understands better than i do that our constitution requires that it be balanced. that responsibility now rests with us. history will record a budget deficit exceeding half a billion dollars is being transferred to our administration. if we're honest with ourselves, we can't blame this deficit on a lack of revenue. we have to recognize that this is a spending problem and that dealing with it now will make balancing next year's budget that much easier. we will hold the line on taxes we're already demanding enough from our hard working people. and we will protect cities and towns and fulfill our promise to end the cut ss in local aid. otherwise, everything's on the table. we look forward to working with house speaker dileo senate president rosenberg and members of both legislative branches to close this gap. while there are efficiencies to be gained and structural changes to be made there's no doubt we have to make difficult decisions and we will work collaboratively to do so with great sensitivity and careful judgment. but growth is the biggest solution to any budget problem. we have a 5.8% -- we have a 5.8% unemployment rate here in massachusetts. but that's a cold-hearted statistic that ignores the 200,000 people seeking work, the hundreds of thousands of underemployed and the tens of thousands who have dropped out of the workforce altogether. and there's no single initiative that can start and sustain a job creating economy, but there's clear evidence that we're too complicated, too expensive, too slow to move and make decisions and on this we must and can do better. our administration will work to reduce red tape, streamline regulatory requirements on start-ups and establish businesses and we'll report regularly on our progress. health care costs are an enormous burden for everyone. they drag down our collective ability to grow and hire more people. be will pursue many paths on this one, but the simplest insuring full price and performance transparency is long overdue. the same service in the same neighborhood with the same outcome with the same person can vary in price by as much as 300%. this must change. there's also a direct link between economic growth and sustainable affordable supplies of energy. as we begin this new year families and businesses across new england are being hit with unprecedented increases in their energy and electric bill. at exactly the same time energy prices are falling across the rest of the country. this increase is being driven in lark part by inadequate delivery systems, the result of poor planning and coordination. i look forward to working with my colleagues here in massachusetts and the legislature and people like governor raimondo of rhode island and the other governors to solve this problem while we continue to reduce our carbon footprint. now, i'm the proud product of massachusetts public schools, and to this dayic still name almost every teacher i had growing up. they moved me, they challenged me and they made me feel like my opinion mattered. across massachusetts -- go for it. across massachusetts, there are many talented and inspiring educators doing for their students what their predecessors did for me. i was in lawrence yesterday, karen and i were both there, witnessing firsthand the progress that's been made in just a few short years there. and despite all their issues, and they have many, a renaissance is under way in their public schools. attendance is up dropout rates are down. test scores and graduation rates are up. the school day is longer and lawrence is hardly alone. there are exceptional schools in many of our most disadvantaged neighborhoods throughout the commonwealth proving they can get it done for kids no matter what their circumstances. but other schools really do need to step it up. for the children and the families that they serve. poor performance given the dramatic success other schools have demonstrated, can no longer be tolerated. while traditional public schools will always be the backbone of our education system, we need more high performing public charter schools especially in underperforming school districts to complement them. as i speak today there are 45,000 bay state kids and their parents on waiting lists for these schools. 45,000. it's wrong for any of us to stand on a front porch or in a city neighborhood sympathizing with a mom or a dad when they tell us their child's not getting the education to succeed in life that they deserve and then oppose lifting the charter school cap or making the kinds of changes that are being made in places like lawrence to ensure that every school is great. last year, governor patrick called opiate addiction a public health crisis. he was right. it is a crisis. it's one that cuts across every community in the commonwealth. several months ago i met john and stephanie green of easton. after a routine medical procedure their 19-year-old son evan was prescribed opiates for pain. slowly and unknowingly he became addicted to them. when the prescription ended he turned to heroin. over a period of years john and stephanie tried as hard as any parents could to help their son, who was in agonizing yet all-too familiar story. tragically, evan fatally overdosed almost a year ago to this day. now, as a parent, my heart goes out to john and stephanie for their devastating loss. as governor, i intend to tackle this problem head-on because too many families -- thank you. thank you. because too many families have gone through the grief and pain that john and stephanie have gone through. i look forward to working with attorney general-elect maura healy, boston mayor marty walsh and many others on this issue. because without strong action, many more individuals and families like the greens will have that same terrible experience. now, when lieutenant governor polito and i complained last year we said we were chasing 100% of the vote. based on the results this morning, we clearly didn't get it. but we campaigned hard in many communities of color, and we did so because we believe these neighborhoods have not benefited from the economic success that has become more commonplace in other parts of the commonwealth. but there are inspiring points of light in these communities because individual economic development, education, community development and social service entrepreneurs are turning so-called lost causes into definite winners. my friend in the commonwealth's new secretary for business development nam pham and the folks at v.a. have worked with their neighbors to literally turn their neighborhood in dorchester into a community on the move where families want to live. robert lewis junior at the base and roxbury has attracted millions in scholarships from colleges across the country. those scholarships are designated for the young men from communities of color who participate in his baseball and mentoring program. and the kids at united teen equality center up in lowell, they're turning gang members into productive citizens through programs like their culinary institute. when you talk to them about their success, their enthusiasm to do more is contagious. our problem is not that no one has figured out what works it's just the opposite. the entrepreneurs and leaders that i just mentioned as well as many others i met during the course of our campaign crack the code. our got just hasn't had the will and the foresight to support what they're doing and do more of it. the tragic events in ferguson and new york speak loudly. and their message is a simple one. when people lose hope bad things happen. i've said a thousand times i want every community to be a place where people believe tomorrow is going to be better than today. and i say it -- and i say it not just because i believe it but because i believe in it. the great writer and philosophy samuel johnson once said the natural flights of the human mind are not from pleasure to pleasure but from hope to hope. put another way, if you think things are heading in the right direction, then you believe in and can't wait for tomorrow no matter where you might be today. and that faith in tomorrow needs to be based on something beyond -- no offense meant to my good friend dennis calhoun or to bishop foxworth. the quality of the schools to send your kids to the parks they play in, the main streets you can walk to and from your house or apartment, the job you have and the future it offers to you and your family, it's weird to avoid the tragedies that make the front page like ferguson and those that don't like the awful shooting death of don joffierre. and it's imperative that we redouble our efforts to provide everyone, no matter where they live, with the kinds of opportunities that exist in this commonwealth. as noted on the plaque on the front of this rostrum, 54 years ago tomorrow, john f. kennedy stood where i stand today when he delivered a farewell address to the general court of massachusetts before traveling to washington, d.c. to become our 35th president. in that address he said success in public service should be measured against four historic qualities. it's right there. courage, judgment, integrity and dedication. the president-elect defined these qualities for his time in office. today i offer them as this administration's compass in the years ahead to redefine our team. first, we must have courage. set partisanship aside and embrace the best ideas and solutions no matter which side of the aisle they come from. second, we must have judgment to make our government as efficient, responsive and innovative as it can be. third, we must have integrity to ensure accountability and transparency because when we make honest mistakes, they must be acknowledged and corrected. and finally we must have dedication to serve the best interests of the public and only the public. it's undeniable that the ability and responsibility to make a real difference in the lives of people a growing and competitive economy, quality and affordable education for all of our kids responsible forward looking environmental policy as well as strong and safe communities lies with and within us. if we approach our work every day with courage, judgment, integrity and dedication, only by working together will we make massachusetts great. and with your help, i know we will. god bless you. god bless the commonwealth of massachusetts. thank you. on the next "washington journal" congressman tom cole of oak, talks about tax and budget issues being taken up in the new congress and the challenge to speaker boehner. then congressman keith ellison of minnesota, co-chair of the progressive caucus on his legislation to bolster the dodd/frank financial regulations. "washington journal" live every morning on c-span where we'll take your calls and comments on facebook and twitter. with live coverage of the u.s. house on c-span and the senate on c-span2, here on c-span3 we complement that coverage by show youing the most relevant public affairs events. then on weekends it's the home to american history tv with programs that tell our nation's story including the civil war's 150th anniversary, visiting battlefields, american artifacts, touring museums and historic sites, history book shelf, the best known american history writers, the presidency looking at the policies and legacies of our nation's commanders in chief. lectures in history with top college professors delving into america's past and our new series, real america featuring archival matter. c-span3 created by the cable tv industry and funded by your local or cable satellite provider. president obama has been invited to deliver his annual state of the union address before congress on january 20th. the president has been giving an early look at some of what's in the address by making appearances across the country. on thursday, he was at a high school in phoenix, arizona to announce plans to reduce the cost of mortgage insurance. this is 20 minutes. hello, arizona. well, hey. happy new year, arizona. go bobcats. i love you back. it's good to be in phoenix. and i mean that because i was in the detroit yesterday which is a great city but it was 60 degrees colder. so it feels pretty good this weather right here. i had a couple staff people who said, we're going to miss the plane. they're just going to try to get stranded here for a while. but you know i went to detroit, i went here, i guess between the lions and the cardinals, this is my post wildcard consolation tour. as a bears fan, i want you to know that, first of all you guys did a lot better than we did. you got a great coach you got a great team. you had some bad luck. and there's always next year. so keep your chin up. keep your chin up. i want to thank secretary casper not just for the terrific bro dukz but the work he's doing every day. i want to thank your congressman reuben gallego. rubin, i already liked him, then he told me he was from chicago originally before he got snart and moved to warmer weather. i want to thank your mayor stanton. he was here. there he is. he's doing a great job. i want to thank your principal, john bayer jr. and your superintendent ken scribner. and i want to thank all of the students and staff and faculty who may be here. we really appreciate your hospitality. one last acknowledgment. i had a chance to meet a couple of really good friends. mark kelly and gabby giffords. and this was a remarkable meeting for me because it was four years ago today that gabby and some other wonderful arizonans were gunned down outside a supermarket in tucson. it's a tough day for a lot of folks down there. we keep them in their thoughts and prayers, but gabby is doing great. she looks wonderful and she's got the same energy and passion that she always has had. even as she waged her own fight to recover, she's fought to prevent the next tragedies from happening to others. he's a hero and a great arizonan. so really proud of her. and her brother who is also an astronaut, her brother-in-law who is also an astronaut is going to be in space for a year. he was just on the cover of "time" magazine which i know there's some folks in washington who wish i was going to be in space for a year, but i'm still around. because i got some work to do. now, i am here because one of my new year's resolutions is to make sure more americans in phoenix and in arizona and all across the country feel like they're coming back. because the country's coming back but i want everybody to feel like things are getting better and we are moving in the right direction. and let there be no doubt thanks to the steps we took early on to rescue our economy, to rebuild it on a new foundation, america is coming back. and that's not just my own opinion. here are the facts. 2014 was the strongest year for job growth since the 1990s. we've had 57 straight months of private sector job growth, created 11 million new jobs. since 2010 we put more people back to work than europe, japan and every advanced economy combined. american manufacturing is growing at the fastest pace since the '90s. we're now the number one producer of oil, of gas and, by the way, you are saving about $1.10 a gallon at the pump over this time last year. although i was in detroit and i told folks yesterday, yes, it won't be low forever so don't suddenly start saying you don't have to worry about fuel efficiency. when you go out shopping for a new car don't always think it will be this low because then you'll be surprised and mad at me later. i'll be able to say i told you, don't get a gas guzzler because gas is going to go back up. but while it's low, enjoy it. and feel free to spend some of that money. on local businesses who then will hire more people and put more folks back to work. meanwhile, thanks to the affordable care act about 10 million americans have gained health insurance in the past year alone. we've done all this while cutting our federal deficit by about two-thirds. and i'm going to repeat that because they did a poll the other day and 70% of people think the deficit's gone up. no, 70% of people. you stop people on the street, 7 out of 10 think the deficit's gone up. the deficit has gone down by two-thirds since i became president of the united states. we've done all this in a fiscally responsible way. and maybe closest to my heart after 13 long years our war in afghanistan has come to a responsible end which means more of our brave troops spent time with their families this holiday season right here back home. so these last six years required hard work and sacrifice by everybody. but as a country we have a right to be proud that all that hard work paid off. america's resurgence is real. now that we've got some calmer waters out there if everybody does their part, if we all work together, we can make sure that the tide starts lifting all boats again. we can get wages and incomes growing faster we can make sure the middle class is growing that the ladders of the middle class for folks who are struggling are firm, steady and have a lot of rungs to them. it's the working class the working families the power of america's prosperity, that's always been the case that will be true for decades to come. and i've got a state of the union address in about two weeks, and that's what i want to talk about. building on the progress we made. but of course, why wait for the state of the union? it's sort of like you got presents under the tree, you start shaking them a little bit. i want to kind of give you a little sense of what i want to talk about. so we're going to start this week laying out some of the agenda for the next year. and here in phoenix, i want to talk about helping more families afford their piece of the american dream and that is owning their own home. now, let me just say right now michelle and i live in rental housing. we don't own where we live. we've got two years remaining on our lease. i'm hoping i get my security deposit back. but bo has been tearing things up occasionally. we'll have to clean things up a little bit. but i'll never forget the day we bought our first place a place of our own. a condo, back in chicago. and for us and millions of americans like us buying a home has always been about more than owning a roof and four walls it is about investing in savings and building a family and planning roots in a community. so we bought this place. it was about -- i guess about 2,000 square feet and in this complex called eastview park. sort of like a railway apartment. and it felt huge when we moved in. and then malia and sasha were born and the toys got everywhere and then it felt small because they took over the whole dining room with their toys. but i have such good memories, not just about the place itself, but all of the work we had to do to save to get in there and then to fix it up and that sense of accomplishment that you were building something for your family and for your future. and that has always been true. when my grandfather came back from world war ii this country gave him a chance to buy his first home with a loan from the fha. for folks like him, america was proof that if you worked hard and were responsible, it was rewarded. we all know what happened in the last decade when responsibility gave way to recklessness. families who did the right thing and bought a home they could afford and made their payments every month and did everything right, when the market plummeted, they got hurt. even though somebody else was acting irresponsibly whether on wall street or folks who weren't responsible in terms of how they were dealing with their real estate ordinary families got hurt bad. and that was especially true here in arizona. there were folks who borrowed more than they should have, there were lenders who were worried about making profits and whether the people they were lending to could keep up their homes. so the home values plunged and america sank under water and builders stop building and construction workers lost their jobs. and when i came into office. >> believed we could not let this crisis play itself out. if we could save more families from everything they worked so hard to build, we have to make the effort. so less than a month after i took office i came here to office to lay out my plan to get responsibility homeowners back on their feet. and i said that healing our housing market would not be easy and it would not be quick but we would act swiftly and boldly and try -- everything that we could to help responsible homeowners. if something didn't work we would try something else. we were going to try to keep folks in their homes. and we ended up helping millions stay in their homes. we helped millions more save thousands of dollars each year by refinancing. we helped folks who didn't want to buy a home or weren't ready to buy find an affordable place to rent. we kept up our fight against homelessness and by the way there are some homeless advocates here. since 2010 we've helped bring one in three homeless veterans off the streets. [ applause ] >> and i want to make sure everybody knows, under mayor stanton, phoenix is leading wait in that effort. phoenix is doing a great job. [ applause ] >> so as a result of all of these efforts, today home sales are up nearly 50% from where they were in the worst of the crisis. home building has more than doubled. that has created hundreds of thousands of construction jobs. new foreclosures are at their lowest level since 2006. since 2012, nearly 10 million fewer americans have their homes under water. rising home prices have put hundreds of billions of dollars of wealth back into the pockets of middle class families. now i want everybody to be clear, this progress is not an accident. it is not luck it is what happens when you have policies that put middle class families first. [ applause ] >> and what is true in arizona is true all across the country. we still have more work to do. our job is not done. but what we are doing is working and we have to keep at it. we have to stay at it. today, here in phoenix i'm going to take a new action to help even more responsible families stake their claim on the middle class and buy their first new home. starting this month, the federal housing authority will lower its mortgage insurance premium rates enough to save the average new borrower more than $900 a year. now, that is $900 that go toward paying the groceries or gas or a child's education. or depending on your mortgage, it might be a month's mortgage payment. and for those not familiar with fha, they under writes and guarantees it is the backstop for a lot of loans around the country. especially for middle class folks. so a lot of people pay these fees. and if they are saving $900, that is money that will be going throughout the economy. over the next three years, these lower premiums will give hundreds of thousands more families the chance to own their own home. and it will help make owning a home more affordable for millions morehouse hold households over all in the coming years. to give you an example, earlier today secretary castro and i nueva villas where peoples are buying homes with the help of the fha. this was a big development that wasn't finished or wasn't all sold. the crisis came. half of the homes were still unsold. folks lost their homes. it started getting boarded up. people were feelingin secure. it was starting to get depressed. nonprofits with the help of hud came in and purchased some of the properties and hired local residents to rehab them and now people are building them. beautiful homesch and. and with the help of fha, we can make sure more people are getting access to their homes and that will mean more money in the pockets of the families like the ones we've met. is this about housing? all right. so, keep in mind, hundreds of thousands of new buyers will mean a healthier housing market for everybody. how many people here own their own home? so even though you've already got your mortgage or your loan or already have your home, if your neighbors are buying more homes, that is lifting the home market here. which means the value of your home starts going up. and that is good for you. [ applause ] it means -- it means fewer foreclosure signs, as people fix up old prorltperties. it means more construction, which means for jobs an a better economy. so this is the kind of boost we feed to keep the momentum that we have seen over the last several years, keep it going here in phoenix and all across the country. so i want to be clear. if you are looking to take advantage of these lower rates that is great. on the other hand, don't buy something you can't afford. [ applause ] >> you are going to be out of luck. these rates are for responsible buyers. we're not going down the road again of financing folks buying things they can't afford. we're going to be cracking down on that. we put in place tough rules on wall street and created a consumer financial protection bureau, and we're really policing irresponsible lenders luring folks into buying things they can't afford. and we've designed a mortgage form that is written in simple language, so that people understand what the commitments are when you buy a home. we're cracking down on some of the worst practices that led to the housing crisis. we're going to protect middle class families from getting ripped off. and that is why we had the justice department fight for buyers who were discriminated against or preyed upon and we want settlement to victims in one year than in the previous 23 years combined. that is why we worked with states to force big banks to repay more than $50 billion to more than 1.5 million borrows who were treated wrongly and that was the largest lending settlement in the history. and that is why i'm called on congress to wind down the government back companies known as fannie mae and freddie mac. we don't think there is anything wrong of pursuing a profit but the day of making bad debts on the backs of others and then getting bailed out after that, we're not going back to that. we've worked too hard and everything we've done to heal the housing markets we want to preserve. but we do want to make sure that the housing market is strong and that responsible homeowners can get a good deal. or people who have saved, done the right thing, now are looking to buy their first home. we want to make sure they get a little bit of help. in the end, everything we've done to heal the housing market is about more than just restoring housing values, it is about restoring our common values. it is about who we are as a country and who we are as communities. and i want to just tell you a quick story. lorraine kona from sun city, next door, she did everything right. she had a good job as a librarian, she bought a home she could afford and she wanted to retire in that home and made her payments on time. then five years ago, for no fault of her own, she was laid off and started falling behind if her forward-looking statements s-- behind if her payments weren't coming. she said people were looking at her house. she learned about a program we created for folks like in arizonathat were hit by the crash, and they helped her make her late payments, because she had a great track record until she lost her job and they set her up with financial counseling to stay on track. it wasn't easy, but lorraine repaired her credit and refinanced her mortgage and today after a lifetime of hard work lorraine is retired, back to making her payments every single month and in her home, she was able to accomplish that even though it was scary at times, she got it done. lorraine came back just like phoenix has come back. just like arizonahas come back. just like america has come back. it is not just the economy turning around. it is turning around the lives of hard-working people making sure that the hard work finally pays off. it is making sure you finally get the job you are looking for or the raise you deserve or a little bit of security or the retirement that you earned or sending your kid to college so their lives are better than yours. that is what this is about. so i just want everybody to know, that we have been through some tough times, but we are moving. there are workers today with jobs who didn't have jobs last year. their families -- there are families who got health insurance who didn't have health insurance any more and there are students in college who didn't think they could afford it and there are those who served tours, and there are workers building american cars when they thought the shops would close down and america is coming back and the key is to make sure we keep everything going. thank you everybody. god bless you. god bless america. [ applause ] president obama will talk more about the policy initiatives in his state of the union speech when he traveled to knoxville, tennessee on friday. we'll have live coverage beginning at 1:10 eastern time here on cspan3 and cspan.org. and watch our live coverage of the state of the union on tuesday, january 20th. here are some of the our featured programs for this weekend. on cspan 2, on saturday night at 10:00, on book tv's afterwards cass susstein on the pitfalls of decision making and what to do to avoid them. an then part of the college series. we talk to professors on the influence of hip-hop and the government's efforts to cure malaria during world war ii. and on saturday, on lectures and history, anderson professor brian durk uses abraham lincoln's life for views on life and slavery before and during the civil war. and on sunday, a discussion on birth control and the impact ever margaret sanger on the birth control movement. find our television schedule at cspan.org. and call us at 202-626-3400 or comments at cspan .organize or tweet us. join the conversation. like us on facebook and follow us on twitter. this is the study of religion and liberty. he talked about morality and free market economics. from the steamboat institute in colorado, this is an hour. thank you very much. what a great event this is. and what wonderful warm people are here. i can barely catch my breath. way up here in colorado. lord acton is the name that we chose as our kind of icon for the acton institute which attempts to engage religious thinkers to understand the moral foundations of thinks like private property and free trade the important of contract, the rule of law and the like. and acton once said, he said a lot of different wonderful, memorable things, you probably know best of all his statement that power tends to corrupt and corrupt power corrupts absolutely. it is one of the most incorrect quotations in history. people say power corrupts, but it is power tends to corrupt. i had the unenviable task of correcting lady thatcher on that. she just looked down her nose at me and said, ohh. just so. carry on. but acton also said this. he said that liberty -- that liberty is the political end of man. and that is true enough. the problem arises when we think that the total end of man is liberty. because liberty after all is a vacuum, right? it is not a virtue in itself. i know in the liberty-loving crowd like this you might think i'm heretical pardon the expression. but think of liberty not as virtue or the goal as our lives but in the context in which we can negotiate the goal of our life. and of course the goal of all life is truth. now we'll have different apprehensions, understandings of that truth and we can have some vigorous debates about that. but it is not liberty itself. you don't want to grasp for an empty thing. you have to fill liberty with something. liberty gives us the contempt in which we can choose either virtue or vice. and i think this is an important part of our movements hartitiage. in fact, it is one of the unique things that the founding of the united states brought into political discussion. because friar prior to that virtually every constitution and political apparatus and construct spoke about some collective or some entity giving rights to people. of course, if you give something to someone you can also take it away from them. but the american founding had this insight which come from a much morainee ancient insight, there was something more inherent in the nature of the human person that comes with the package that he should have liberty or she should have liberty. we recognize rights. we protect rights. we can also on advice kate rights and violate rights. but every human being has a right to bear. and our move to forget that, to emphasize too quickly the utilitarian benefits of liberty which are manifest in obvious, especially when we compare it to the obvious social wreck of socialism, for the utilitarian benefits of local freedom, to neglect, the anthro poll logical roots, why we have liberty invested in our nature, is to undermine a very important and compelling part of what the movement for freedom is in our nation and indeed in our world. because if we understand there is a common ancestry to all people, i'm going to describe it in a judeo-christian language. i live it to others from different traditions to describe it in their language, but i basically use a kind of natural law framework a grammar, if you will that will express i think, to any reasonable person why it is that human beings by their nature are right's bearers. and then if we can understand that, then and only then can we build a secure foundation for an understanding of liberty in our age and our generation in our day. if we get the anthropology wrong, anything we construct on top of it no matter how elaborate or seemingly beautiful, will also be faulty. and if you ask me to identify one thing that is at the root of all of the confusion, not only in our politics but in our culture today it is this question. it is the question that the psalmist put forward so many years ago. psalm 8, what is man that thou art mindful of him and the son of man that thou visited him. if we are simply the sum total of our physical parts then we are a speck of dust upon a speck of dust floating in a cold and cruel universe. but if we are something more than merely our physicality we certainly are physical and that is why we have to respect the utilitarian dimensions of liberty and that is why we have to respect the institutions of politics and culture. but there is something more to us because we were built for something more. we contain within us eternity. i like the way c.s. lewis put it in such a memorable fashion. judy -- judeo-christian terms. you have never met a mere mortal. everyone who you came in contact, every shop girl who you purchased something, every person you have ever loved or every -- ever hated is an emortal horror or everlasting splendor but you have never met a mere mortal. lewis said in follow up to that, the most sacred thing that presents itself to our senses next to the blessed sacrament is our neighbor. see this is why we must build societies that are not merely free. freedom is necessary. but it is not sufficient. we must have freedom but we need to ask freedom for what? so for a few moments i want to talk about anthropology and talk about history from a reasonable point of view. and again, i invite dialogue from all perspectives, from secular believers or unbelievers or christians and jews and muslims an buddhists and whatever else. if we can agree on reason here, then i think we can advance the conversation at a deeper level rather than people talking past each other as we so often see in our media today. so we begin with who is man? who are we? the most obvious thing about us is our physicality, isn't it? in the book of genesis, it describes the creation of the world as being good and then the formation of man and woman from interestingly enough the dust of the earth into which is breathed the breath of life. and doesn't that account for the human reality? think about that. we are the dust of the earth. we are corp oriole, but there is something in each of us that transcends the physical. now we could quote bible verses or theologians, but just reflect on yourself and your grandchild and on human beings. we have the capacity to transcend our physicality, don't we? when we love we transcend our physicality. you give yourself away to the beloved, and what happens? you are not diminished. you are enriched. in our creativity we see this, in art and in business, because it requires an understanding and respect for the physical world and all of the confines that that sets up for us. we live in a world of scarcity. but somehow we can produce more than we consume. and what is that in the human person? it is our reason, our minds. that is what sets us apart from all of the rest of creation some of which is also sentient and physical. but still does not have the capacity to reason. reason is the thing that distinguishes us from even the most intelligent of the animals. we engage the world by use of our minds and our imagination, our ambitions and our capacity to see potentials. you see, we reflect on ourselves. and we can even -- and no animal can do this -- reflect upon our own reflection. and the result of that is that we establish a relationship with a material world that is more than physical. animals are bound to the material world by instinct. man is bound to the material world by reason. and because of that, we can create. we auto utilize and take things that have no particular value and shape them in such a way that all of a sudden they become valuable for others. that is the origin of private property, right in our nature. animals don't do that. oh beavers build dams that is true. but they don't build hotels and rent them out to other beavers. [ laughter ] >> see, that creative capacity is an indication of our transcendent potential. and when we only look at ourselves as mere physical entities that live only by our passions and not by our reason then we find ourselves slaves. the ante this is of freedom. and when we create structures that violate that freedom, including the right to property, which after all isn't just a right to a material object in itself but all of this intelligence that goes into the creation of things, when we allow structures to be built that inhibits that, then we destroy not merely financial prosperity, but we pollute the entire culture, the view of ourselves, the view of others. this is all related to the lowering level of standards of beauty and music and architecture. i mean all of this is of the piece, because you and i are the apex of the creation of the world. we are the summit of creation. in fact, again now according to a biblical view, it is into our hands that creation has been trusted. we have a stewardship obligation and in order to act faithfully we must be free to bring about a world that is better than what has existed before us. you see, politics is not the ultimate. it is necessary. but if we don't develop a moral vocabulary to speak to our society in moral terms we will not be able to raise the army that will be needed to protect the right of human liberty in our generation and in subsequent generations. and this i suggest to you the assault on the dignity of human life, the assault on reason the assault on the freedom of worship and religion the assault on the right to private property, the assault on the rule of law, the assault on the right to contract, and association, all of the other similar rights that are interconnected results in the destruction of our civilization, of our culture of ourselves. that is why it is important to always think together about our rights and responsibilities. i like that. in the steamboat statement of principles. rights and responsibilities. not just rights. human beings are not only physical and transcendent, we divisional and relational. think about that. that is another unique thing about human beings. we are individual, in that the first moment of our existence we were a biological entity different from our mother our dna was different from the womb in which we existed and yet we were in relationship. and after someone is born that anthropology continues. we are still very dependent but now more obviously individual and yet in relationship. and we go through our whole lives balancing those polarities of our individuality and our social capacity. now the error of radical individualism is to think that we don't owe anybody, anything any time. as though we all invented the language we speak right. we didn't inherit it. or we didn't invent the world in which we come to or that we created it ourself. all of that is nonsense. and yet to not recognize that we are in relationship leaves us isolated. on the other hand, you have the great error of communism. which sees man as having no value except in his value to the whole, to the social to the collective. so that human beings become only a part a cog in a great socialist experiment. you see, if you get the anthropology of either of these wrong, you get the societies upon which they are built wrong. rather, we have to create a -- a society that realized we are individual and social. and the best part of our social reality is our ability to choose where we will invest ourselves. our ability to choose friendships and fraternity with other people. our ability to help those who are in need because we recognize a part of ourselves there. but to create a society where the state is the dominant indeed at times almost the exclusive actor in social causes, in social remedies, is to exclude not only human creativity and iniative but it is an attempt to distort human nature itself. which is what all of the great collectivist thinkers thought, whether it was carl marx or lennon or hitler or cains. to make it serve an ideological end. rather than what it is the given of what we are, and deriving from that the ought that we should be and what we can be in our nature. now from my perspective, the best way to approach this philosophically is through the judeo-christian lense. i think the scriptures give us a rich cosmetology understanding. if others have different understanding, i think the scriptures conform to our natural reason about these things. that line in the founding documents that speak about nature and nature's god is precisely the tradition that goes back through the history of christianity into judaism even into the ancient world the romans and the greeks. it is a truth that wise people have thought about over the years. because we understand, specially in an incredible technology sophisticated moment that we are all experiencing, and honestly probably being very annoyed by often, we understand that it is not just data that we need. with all due respect to sergeant friday, it isn't just the facts ma'am that we need. it is the meaning behind the facts. it is wisdom that we need, not just data. wisdom. and this is the reflection of an integrated holistic view of who human beings are. many of you are involved in the world of work, business. you have many -- literally mundane concerns. mundane meaning daily concerns that occupy your time. and some of ma -- may think well there is no particularly spiritual or poetic dimension to worrying about accounts and how the factoryies are operating or whatever physical labor you are involved with, you may think that is the world of utility and it has nothing to do with the world of beauty or poetry or morality or transcendence. but that is a mistake and it is a deadly mistake. each human being has a call, a vocation to do something based on who they are and what their different capacities are. none of us are equal. that would mean to be the same. we all have different capacities. one person is a better painter, another is a better thinker another person is a better physician or another better athlete. we're none of us equal. but each of us has this call to be as excellent as we can be with what we can do. and if you only see your business as a way to meet a bottom line rather than to build a community rather than to promote an epic sense of reel community and society, not the artificial impositions that come from far away away away bureaucracy. if you see yourent prize as a sphere -- your enterprise of the plumes that makes a society operate, if you don't see that then your energy is -- evaporates. but if do you see that then you understand that your mundane day-to-day physical labor can have eternal significance. a french philosopher once put it this way and i wish this phrase was above every seminary. he said if you want to build a beautiful cathedral like that of notre dame with spires reaching up to heaven, representing the rising of the soul to god, if you want to do something like that you must first understand geometry. and this is the phrase i would love to see above every seminary. piety is never a substitute for technique. for without technique, piety is helpless to use nature for the glory of god. piety is never a substitute for technique. and when you grasp the importance of that idea you understand that integrated into our everyday life are the offers of grace that is in theological language. again you'll use different language for yourself from your own tradition, but in my tradition, an offer of grace is an offer of relationship with god and there is not one point in the universe that is not offering us this relationship with the transcendent. a monk wrote home to his father after he had been in the monastery for a while and he said, dad, i'm so glad i found my vocation, praying day and night. we get up at 3:00 in the morning, when all of the world is hushed to pray. his father wrote hick back, he said your mother and i are so proud that you found your vocation. but i want you to remember one thing, many a night at 3:00 in the morning when all of the world was hushed, your mother and i rose from our bed to change your dirty diapers. [ laughter ] >> and in that we found our vocation. imagine that. this is really incarnational. this is understanding. in a baby's diapers, you find your vocation. but if that can be said of a baby's diapers it can be said of your factories it can be said in front of your computer terminal or in front of a blackboard. if god is not on the floor of the new york stom ex-- stock exchange how can he be god among us emmanuel. and that is why politics has a role to play. i'm not a political leader. but the role to play is to create spheres of freedom along with the moral tudoring of a society that is not only free but good as well. a society that understands itself because its people understand themselves. that our end is more than the physical comfort or the passions indulged in. that we have an end beyond this world. and that is why freedom is a sacred thing. even if it is not the whole answer. i opened with a quote from lord october acton and i would like to close with another quotation. he said liberty is the delicate fruit of a mature civilization. out on the side of the house that i lived in in a religious community a while back, quite a while back now, who we moved in we were doing some repairs and i noticed on the side of the house there was some big tree that went up in the air. and it was taller than the house itself. now i'm from brooklyn new york. >> yay. >> see, what do we know from trees? no there was a tree in brooklyn once. i think somebody got it. so there is this tree up there and i'm looking up and part of it is in full bloom and part of it is dead. there are dead leaves on it. so i called the tree doctor, who knew there was a tree doctor right? we called the tree doctor and he came and he looked and picked up some of the leaves an picked at the bark and came up to the porch where i was walking him and he said, sorry the tree is dead, we have to take it down. and i said how can it be dead the leaves just came out. and he said, i know, it is an illusion. i said they are really not there? and he said, no, what i mean by that is there is still some of the sap working its way through the tree. but year after year there will be less and less of that sap because the roots themselves are dead. and you have to take the tree down because in these michigan winters, you could have a good storm and it could blow on to the house. we have to take it down. i think of that as a metaphor for our civilization right now. i do not believe the roots are dead. but they have been sorely neglected, forgotten and infected. many in our culture today live off the legacy of the past. they are just happy with the sap that is running through it right now, but they don't realize that they are not producing more sap. they haven't given the nourishment to the roots because they haven't tended to the root and they don't understand the root an the roots are everything i've said. and the solution to the decay is going to be to get into those roots and renourish them with the great traditions of the west. re nourish them with a moral appreciation of ourent enter -- enterprise of our government that is limited and not doing for us what we can do for ourselves. we must tend to those roots so that that delicate fruit can survive again in our mature civilization. thank you very much. [ applause ] . >> thank you. thank you, you're very kind. we have some time for q&a. so i really enjoy this kind of program, especially with you people. >> father, real quick, could you also just make the point that the acton institute despite you being a founder and a priest, is not a catholic organization. >> we work with all different organizations. i'm the co-founder of the institute. but most of the support comes from noncatholics and our out reach is to noncatholic. we have a heavy catholic support but most of it is with protestant and christian orthodox people. and an occasional jewish person and even a few muslims from time to time. and even some secular people who understand the importance of this moral foundation. now this lady is going to ask a question i'm veriy happy to translate because i'm bilingual, i can translate from brooklyn into standard english. >> father, in the -- >> father. >> yes, of course. >> in the old testament every time israel turned its back on god,ize wale was punished. this country is morally bankrupt. i'm afraid for it, what will happen. can we have a revival of morality not necessarily religion but morality -- in the newspapers we read of hit-and-run accidents every day, this is immoral. this is -- what do you think? can we go back? thank you. >> yeah, i think we can't go back in the sense that we can put the toothpaste back in the tube. and i think sometimes especially conservatives think, all we need to do is revive ozzie and harriet and everything will be all right. obviously there was something wrong philosophically speaking in the 1940s and 50s because it gave us the 60s and 70s. because there was something wrong there. don't get me wrong i like ozzy and harriet. but i think what we need to do is to do something new today. we need to understand the idiom of our own culture and speak in that language. i'm not talking about curse words, i'm talking about to the values. because people are so confused. i don't think that our society is completely morally corrupt. i think if you live on the coasts, you might think that. you remember when reagan was elected president and somebody in new york, manhattan, said how could this be? nobody i know voted for him. that really happened. so i think what we have to do is be very careful that we're not buying -- that we're not reading "the new york times" too seriously. because that is like the edit editorial page is often fantasy land. and now the obituaries is curtailed or manipulated to create a certain culture. and our popular media is like that, that is our movies an things. i think we need to look for things that speak to the values that are authentic moral concerns that many people have. and there are a great many of them. children have a -- children have a civilizing effect on people. not on all people. because we hear about children being just put in waste baskets and things like that. but i think as people think to the next generation, they have to think about things that are more solid and reliable. and we have to be creative enough and win some enough, to be able to articulate the values, not as hostile values to people. we ought not to be and let ourselves be characterized as skulls. the conservatism of going around and telling everybody what to do. we need to be win some and call people to their nature that they know this. and i think it will require a great division of labor that some is people will be involved in politics, others in education, others in the social media, creative writing, art work, all of this kind of thing. but i'm afraid to say that it is much easier to pull apart a toaster than it is to put it back together. and a lot of the toaster has been pulled apart and is laying on the table with a lot of crumbs. and we just need to think about how this whole thing fits together again. but i look at a room like this and i see people who are dedicated and who are energetic and creative. and i have hope for the future. i'm just not going to let them take it away. >> father bob, over here in the corner. >> i'm a robert by the way. >> okay i'm sorry. you remind me of in this -- and this need i think is national, for another bishop fulton sheen. >> that is a great honor. >> and what you have said today i think more people need to hear and on an ongoing basis. have you given that any thought? >> yeah the last 25 years i have given it thought. let me say how highly i respect fulton sheen which is why i would never make the analogy between me and him. and that is the example of what i'm talking about. he spoke to the people of his time in the way that the people then could understand him. you know do you know that fulton sheen had a television show. many of you old enough to remember fulton sheen and he i think was the -- i forget what the award was -- the emmys are for television? and he was up against the sunday night lineup i think it was. he and milton burl were up competing against each other and fulton sheen won. and he came up to the microphone and he said, first i would like to thank my writers, matthew, mark, luke and john. that is what i mean about being win some. but i founded the acton institute to promote myself, but i think in that age sheen -- that that one person spokesperson was an important thing but i think we need something more diverse institutionally and we need a lot of voices saying a lot of things. besides which i don't want to leave this planet and have the work disappear. we're talking about succession planning in our organization so that the next generation that this institution will go on. last june we had a thousand students attend a four-day seminar offering 120 courses. they came from 80 countries with 60 teachers, mentors at this. and next year we'll have more than that because they recommend others. and one of our facebook pages, poverty cure has about a million and a half "likes" on it. and why is this? because i'm the oldest person on our staff. they are pushing this forward. they understand the social media. now we're not the whole thing. we're a part of it. we try to bring the conversation together. and then enable other groups like steamboat institute and other very good groups to do more than what we are doing. for the foundations of the american republic and everything like that. so we are doing it. and go to our website, acton.org and see the plethora of scholarship and film and materials and curriculum that you can use in your churches and study groups and your organizations. and i pray god, when you go there, you'll see it is top-quality stuff. it is win some, fun factual innovative and it is on the cusp. >> father, it seems like one of the real dichotomies -- i'm back here. this is god speaking. >> oh. >> between the liberals an the conservatives or the republicans and the democrats, is that the democrats really seem to believe that if we just had taxes higher and higher in order to take care of all of those see sital -- societal ills would be the right goal. would you explain why we have that goal. >> let me offer a few correctives to that. the first is that i would say that the opposite of that error would be the error to think that if all we did was obliterate government, that everything would be fine. that is not true either right? this is where the social connection comes in. government has its place it should be modest, it should be the resort of last resort. the resource of last resort, not first resort. and the other thing i would say in terms of engaging the question not just a bunch of conservatives talking about this, because we get together and complain all of the time, right? but to say what is it that motivates the progressives to say we need more money? the best motivation as a christian i'm taught to always try, and i am in the confessional all of the time because i don't do this, is to try and believe that that person who is calling for the abolition of private property or something close to it really intends good by it. what are they concerned with? they are concerned with the vulnerable and the por and disenfranchised. they are concerned with racism and a whole host of things. are they inconsistent in the concern? yes. are they sometimes impervious to arguments that show that too much government creates vulnerabilities? yes. but if we can just take that intention on their part and speak to that intention, then we can say to them something like, it is not that we differ in our goals, what we differ in is in the way to get there. we don't believe that bureau crates or highly complex -- bureaucrats or highly complex political entities know enough of what the need is. it is not the government is too cheap, it is the government is too stupid. and what i mean by stupid, i'm not saying that about individual people, i'm saying that human freedom, especially as expressed in a market, through prices and things, when those price signals are free you really know what the needs are. if you cut the information flow that comes from the decisions of thousands and thousands of people who are reflecting their subjective needs in the market, based on what they buy and what they sell, what they demand as consumers, if you cut out that free flow of information you make society much more stupid based on that. so we don't really know. we have too many size 13 shoes and not 9 1/2 shoes which is what happened in every socialistic experiment in history. so to speak lovingly and gently to their intentions and try to show them the way out. and then when they don't listen then you shove things down their throat. something like that. >> i was waiting for that. >> i'm joking. all of the progressives watching on on cspan right now just dropped their chablis all over the couch. >> father, are you a benediction or geezuity. >> i'm a diocese. i've sued people for calling me a jesuit. i forgot we have a jesuit pope. i'm a diocese. >> and my question is barack obama a christian aa jew, a muslim, or a creationalist. >> i have never met him and dealt with him spiritually, i couldn't answer that question any way, right? but as an outsider, just observing as best i can tell, i think he is what the political demands call upon him to be at any given moment. that is what i think he is. i think that is what he's dedicated to. i say that with all due respect to the president and deep concern for his immortal soul. [ laughter ] >> over here. >> you're laughing i meant it. >> over here. >> oh, yes. >> why is it that we don't hear more moral outrage from the senior leadership of the muslim community, and particularly the imam's. if there were a group of radical catholics hijacking the religion. >> oh, there is. >> it would be sung from on high from the pope and yet there is the occasional imam that will make a comment but i'm astounding there is not a bunch of it that is -- >> that is a good question. and i've asked that question myself. and it may be that -- and this may not be the whole answer, i'm sure it is not the whole answer. it may be a come bin is of -- combination of things, such as their high arcy construct -- they don't have a one teaching authority, as a book, the koran and the scholars can comment on that but it is very rare that you have scholars who get together and say things. and where you have had groups say things that arage ore ageage that are authoritative. and on you tube, there is an imam in egypt or iraq, literally crying for the killing of christians that he has seen in his own country. it may be that in certain circumstances they are literally afraid to do that because of the more radical element. here is my admittedly untutored take on the whole islamic thing going on in our country and in our world and that is i desperately want to believe and from my own experience with muslims, do believe that the vast majority of them are trying to live good lives and want to live in societies where people can live in peace and certainly historically we've seen that possibility. but what islam has not had, and what the church did have, were thinkers like augustin and thomas equine as who took the church and the teachings an the history and applied them to different successive generations, how to develop the church's teachings. and i think it awaits its augustin or thomas. how that would come about, i haven't a clue. for some muslims that would be considered heresy. and i don't have a dog in that fight in the sense i'm not a muslim so i'm not able to make those determinations. but if a peaceful islam were heretical to what we were seeing with isis then i would welcome the heresy. because i think what you have right now -- and the other thing that islam doesn't have that christianity has, is an equivalent statement to the one where jesus holds up the coin with caesar saiz head on and says pay to caesar what is caesars and unto god what is god's. by authority and power. power is a form of constraint, as is authority. they are both forms of constraint. but power is a form of constraint that is external to the person. in other words, you are coerced from outside. authority is a form of con strapt -- constraint that is interior. so that when someone corrects you and you believe that what they are saying is true even though you don't want to do it you do it because you believe in the authority of the argument or of the person. that is why i would differ with mrs. cheney in this respect. i think we should be able to tell people what is right and wrong. and you should be able to disagree with me for telling you that. right? this is the wonderful basis of tolerance in society. tolerance is not acquiescence to things you don't agree with or lifestyles you don't agree with. but when you say i don't agree with that, that is when tolerance comes into play, but i will not raise my hand to you. and with islam it does not have the division between authority and power. it is admittedly a theo crattic religion so the government is the authority of god and must be. this is why you have sherry uh-huha law and they have to come up with a another way of nuancing their own theology so the vastly outnumbering majority of muslims who want to live in a peaceful society can articulate that within their own religion and theology to make these kind of distinctions. >> hi, it really struck me when you said that there is an assault on reason. and for the past few years i file like i've been living in a parallel universe where someone will say black is white and white is black and broek care is working and when you say black is black and white is white and obama care will work and they look at you like you are nuts, how do you deal with that win somely? >> you could make fun of them. i guess that wouldn't be win some. you know let me just make a little bit of a confession, not too much of one. don't get salivating here, but just a little one. i was on the left for many years. i'm a revert to my catholic faith. hi abandoned that in my teens and i was involved with the political left in california for about four or five years i knew jane fonda tom hayden. oh, you don't like that? well maybe you coloradoans will like that i gave jane fonda a joint in the back of the gay community center. in hollywood. because she said tom won't let her keep it in the house during the campaign. to which i said, fine feminist you are. so maybe that is what makes me a little bit more sensitive. i know these people as people i used to. i don't hang around with jane fonda any more, giving out joints in the back of the gay community. but i know there are many good people and they might not get the point on where obama care is -- not only isn't functioning yet, it is probably functioning as well as it is going to function right now because it hasn't really completely been unrolled. but to help them understand a little bit about just basic economics. and why, if you just went to a grocery store without any prices on anything, all of the good meat would be taken first and there would be nothing left. in other words, no way to coordinate the thing. and that is the problem with obama care but the nation as a whole. but there are more people here who know much more about that. but i think the question of win someness is a different question than the question of argumentation. in other words, the facts are the facts and we need to present those reasonably. win someness is saying it in a gentle way that bee speaks respect for the other person. and that can be very disarming. and then it gets to core values where you can have i think a more fruitful conversation. and maybe even a more profound disagreement that may not be disagreeable that may not be disagreeable. i have an edge to me. brooklyn is that edge. but i think we should at least try and do that. >> one question. >> i'll go to this side and then we'll go to you. >> okay thank you. there are many in the conservative movement and perhaps many in this room that believe that conserveatisms need to call a truce that the right-wing conservative, religion right have hampered our ability to win elections. i'm interested in knowing why you disagree with that and why you think it is important to talk about the social issues and in talking about them can you role model how we should do it taking perhaps abortion and traditional marriage as examples? >> well, first of all, the acton institute respects the division of labor in the conservative movement and the broadly understood right side movement. for that reason, as an institute, we don't deal with a lot of those questions. i mean, on occasion i will sign on to something or speak to something in my capacity as a priest. but i feel there are so many groups that are doing such good work. it should come no surprise to you where i stand on same sex marriage or abortion. but in my work with acton we deal with this lack una we see an economic understanding among religious leadership broadly understood. i am not convinced -- i think that the same thing applies to the social conservative group as it does to the economic conservative movement, in terms of the need for win someness and respect for other people. so that we need to speak with great love, especially on questions like abortion, because women find themselves in arduous situations very often. not the majority of women are having abortions because they are having abortions their third and fourth abortion but i think we need to speak with -- it is really different as a priest when i get up and preach on abortion in my parish which i do, and contraception, which i do, and i've heard confessions or on
New-yorkUnited-statesBay-stateMassachusettsJapanActonTennesseeSun-cityArizonaBrooklynTexasAfghanistan regulating what judges and lawyers can talk about. that is a basic overview of the case, and we can get into more at question time. >> thanks. tracy, you're up. >> i'm happy to be here today. turns out it is very cold in nashville. but in nashville, we just close. all the public schools, private schools, everything is closed today in nashville, the temperatures that are slightly warmer than the temperatures in d.c. today. my role today is principally as an empirical legal scholar. i ask questions about the decisions, courts and judges make and why they make those decisions and i answer the questions by using statistical empirical methods, right? so that's what i do. i'm one of the members of -- one of the amici in a brief filed by empirical scholars and law political science and economics. and political science. two of those are my field of law, and political science. but i also teach law. as andrew mentioned. all law school classrooms are fantastic. at least the ones i teach in our fantastic. and one of the messages i give students the first day they're in law school is about the substantial power we give to judges. and, in fact, the most substantial power really is ms. williams. trial judges make decisions with very limited oversight. they have discretion about what for most individuals are the most important events or interaction they'll ever have with the legal system. am i going to be held over on bail or am i going to be released? what is the sentence going to be? what's going to happen if my partner, ex-partner fails to pay child support? very significant life decisions are in the hands of these judges. and our ability to monitor these judges once they're in office is pretty limited, right? very few cases are reviewed on appeal. of those cases, the vast majority are affirmed. so while trial judges are not that visible to most of us, most of us are focusing principally on the highest courts in states in and in the country, in fact for the average citizen, they are the law. and as a consequence, we should be particularly concerned and interested in the rules that govern how we choose trial judges. although so often the focus, of course necessarily is on the courts that grab peoples attention -- the u.s. supreme court being the most visible example. so let me talk about him." research -- talk about empirical research on the relationship between judicial selection method and judges and their behavior. so a substantial and growing body of research shows how this affects judges. we are talking about state judges because federal judges have always been chosen for life tenure and an appointment with confirmation. presidential nomination with advice and consent of the senate . empirical scholars have found that there is a strong relationship between campaign contributions and judges' voting. these studies specifically demonstrate that the identity and the interest of donors impact the decisions that judges make. that is, money biases. whether consciously or subconsciously, the recipient's subsequent actions. let's look at a few examples. the largest city to date focuses on state supreme court rulings in business-related disputes. it found the greater the contributions, both the fact of contribution and the quantity of the contribution from business interest, the higher the probability that a decision would be favorable to those businesses and businesses in general, holding other variables constant. contributions increased the likelihood of a vote for a business facing an individual or a business defendant in a tort suit. one study estimated that the impact of $1,000 contribution is a .35 to .69 percentage point gain in the probability of success. and businesses and business groups have learned from their success. we see dramatic increases in the spending in races. businesses are the single largest donors in state supreme court elections. other cities have revealed a relationship between the identity of law firms and the type of firm and the decisions of judges on state supreme court. so by type of firm here, i mean if plaintiff-side firms, so trial lawyers groups, or firms that often here we're talking about complex litigation firms donate to judges, judges, those judges are more likely to supreme court plaintiffs in mass litigation. law firms who contributed to judges campaigns gained better rulings in disputes about arbitration decisions. they also were more likely to win appeals in tort suits. businesses and law firms are the largest source of contributions for judges based on the data you have available. but studies have also looked at other groups, groups that often disagree with the business interest, such as unions and other prolabor groups, and have found that those donors are also likely to gain a greater number of favorable votes when contributions rise. and it's not merely the fact of donations, it's the amount of money. that matters. if two donors face off, research has shown that the donor who contributed more to the judge's campaign would be more likely to succeed. now, these studies, as most empirical research does, trying -- faces the challenge of trying to demonstrate the causality direction is from the contribution to the behavior. right, think about studies you're already very familiar with of the behaviors of members of congress. is it that the donors are affecting what members of congress do? or is it instead that donors are good at picking members of congress who are likely to support their positions? and empirical researchers have tried to hone in on that question to test the direction of causality. and specific research has shown that the theory that the theory that direction is from donor to judicial behavior has support in some specific ways. so, for example, studies have shown that judicial behavior changes as elections draw near. right? so as the fact, whether you -- the fact of voters selecting whether you continue in office or not or pick an opponent in contested elections makes more salient the effect of decisions on your future, you change what you're doing. then you reset back after the election is over. so they're more likely to hand down stiffer sentences in criminal cases as re-election draws near. they're more likely to support prosecutors and criminal procedure disputes, and they are less likely to grant reprieves in capital cases. if you focus on donors and donors' perception about the direction of causality, donors have given to judges who did not previously support their position. donors have given to judges who face no opposition. so these donors clearly think there is an impact. finally, and i think this is in my view one of the most persuasive findings, judges' behavior is different if they don't face reelection. and these judges -- many states have mandatory retirement for judges. we do not in the federal system, but most states have some sort of mandatory retirement. judges who won't be facing re-election because of mandatory retirement are not affected by past campaign contributions, whereas judges who do behave differently. i'm happy to answer more questions about this or the amicus brief we filed, but that's an overview of the relevant empirical research. >> thanks, tracy. ed, you're up. >> thank you, andrew. thanks to all of you who have been here. i think i've been asked to be on this panel in part to be contrarian. see if i can do a little bit to achieve that goal. actually i find this to be a , difficult, interesting case. i don't think, contrary to andrew's take, that one's view on citizen's united dictates a view on this case. let me highlight just a few issues here. one is the whole question of what the standard of review is that applies in the case. you see all parties reporting to adopt strict scrutiny as they -- it even as they acknowledge there's some possibility of something called closely drawn scrutiny, lower standard that might instead apply. i think this debate between these two standards illustrates the incoherence of the court standards of review altogether. but when you look at the florida bars case, its brief, it's difficult to see that it is applying anything remotely like strict scrutiny. we see talk of the state may reasonably conclude, has wide discretion, could reasonably have believed. so i think there's one-threshold question. what standard of review does apply? i actually think the florida bar has a good argument that the brennan center develops nicely which is that person to person solicitation presents special dangers of the quid pro quo or the perception of quid pro quo arrangements. now, it also happens, i think, that personal -- person to person solicitation involves special powers of -- it's more likely to result in favorable responses to fundraising requests for reasons independent of the quid pro quo possibilities. any fundraiser would tell you, you want to have your principal make the ask because of the human reluctance sometimes to say no. so you have a difficult clash, i think, of these two points. that said, as matt pointed out the particular petitioner in this case, who has been penalized below, william julie did not engage in anything that could be called person to person solicitation. she sent out a single mass mailing. i had not realized it resulted in no contributions, but that says something about the power of mass mailings. something i've learned about the hard way, as well, with my own organization. [laughter] so i think there's a good question whether the court will even address this broader issue, whether this rule against personal solicitation by judicial candidates is constitutionally permissible or not. it's possible, in other words that the court might say indeed, i think some of the parties are urged this. -- of the parties urge this -- i think the aclu urges this. that whether or not this general rule violates the first amendment, it can't constitutionally be applied to ms. williams, julie, because the conduct she engaged in was nothing of the sort that implicates the quid pro quo concerns. might dismiss the case as granted. precisely because it doesn't provide an opportunity to resolve this clash. that would be unfortunate for her. it would mean that her loss would remain in effect even though the underlying reasoning of the court would be so clear that she wins. -- so clear that she wins on this narrow issue that we don't decide the broadser issue. the court says it takes, it grants cert in order to -- to resolve these issues, not do error collection -- correction. >> she didn't win the election right? >> right. >> she lost the election and lost the case? >> now, i emphasize all my views on this case are tentative. the reply brief hasn't come in yet. the aclu, i believe, and it's -- it's brief in support points out the experience of other, some ten states or so that have judicial elections and don't have this bar with personal solicitation candidates suggests there is no compelling need for this. the last point i'd like to make in an effort to be provocative is that i think there's a tension between the brennan center's position that judicial the judges are so fundamentally different from legislators. and the general view of judgment that's been offered by many on the left that judges really are just legislators or super legislators, and they ought to be encouraged and invited to indulge their passions and their values. as president obama said in his notorious statements, setting forth the empathy standard, hard cases can only be determined on the basis of one's deepest values, one's core concerns, broader perspectives on how the world works, and the depth and breadth of one's empathy. if that's the view folks on the left adopt, then i don't think the position they're arguing that judges are fundamentally different from legislators coheres. again, that may go less to the merits of the case, how it should be decided, than to the incoherence of some of the views on the left. so with that, i'll hand it over. >> thanks, ed. >> thanks. >> talking about why the williams-yulee case affects other fair courts issues, as well, and also shedding light on brand new polling data that we have that shows the impact that these personal solicitation bans have on public confidence in the courts. i think from the 30,000 foot view of the case is important because it's a good reflection of this new judicial culture that we've been talking about to some extent. it's a culture where judges are being forced to raise vastly more money than ever before, which is in turn becoming somewhat of an arms race between these judicial candidates. when these candidates become elected, they find themselves oftentimes trapped in a culture that then perpetually challenges their ability to be fair and impartial. to this extent the yulee case is a good reflection of this because it comes out of florida. as we've said, florida is one of the 39 states where some of the judges are elected. this puts the candidates who run in a challenging presumption when they're campaigning. on one side, they have to be because they're elected representatives, reflecting the best interests of their community, interests that sometimes are sending in a lot of money to these campaigns to get their views across, while at the same time, having to remain entirely impartial and independent. this tension created a series of major problems at the florida supreme court back in the 1970's. three former chief justices in the florida supreme court and four past presidents at the florida bar association have written the court a brief on this case to tell the story of how florida's ban didn't come about because of some hypothetical conjectural concern about ethics. it wasn't something that their political leaders read about in national headlines. it's because in the 1970's, a full majority of the florida state supreme court, 4 out of 7 justices, had to resign over corruption scandals. these were scandals that involved the justices intimidating lower court judges, attempting to overturn bribery convictions for campaign contributors, allowing contributors to ghostwrite opinions from the court. and probably the most high-profile case of a justice flown out to las vegas by a dog track owner that has a case in front of the court, and a reporter from the miami-dade area follows the justice out to vegas and gets a shot of the justice on the dog track owner's money, rolling the dice at a craps table while the giant cigar is hanging out of his mouth. [laughter] so these are the issues that led florida's political leaders to talk about personal solicitation bans. but the importance of these bans didn't fade away with those corruption charges and with the scandals in the 1970's. new polling that justice at stake and the brennan center have collected from last month demonstrates the importance that personal solicitation bans still have today. and it's not just in florida. so in the past, polls from have shown about 95% of people think that campaign contributions affect judicial decisions. even more worrisome, half of the judges agree with this statement. but our new polling goes further than this. data from last month that reflects voters' opinions from all 39 states that elect judges in some level of judgeship show these bans are effective at maintaining public confidence. 63% of respondents said their confidence in the courts would be lowered if judges were able to personally solicit campaign contributions. 63%. of this group, 81% said their confidence would be lowered a great deal. i think that data like this make it very clear that personal solicitation bans in particular do have a real impact on public confidence. and show that there is a real measurable value in prohibiting judges from asking for contributions directly. so i'll close by saying that while these bans are important for fair courts issues, florida knew it then and, as polling shows, a majority of people still think it today. these bans are still only one part of a much larger solution a much-needed solution. keep in mind that florida's ban was passed in the mid-1970's as part of a complete reform package. the crown jewel of which was the fact that florida changed the way that it selects its supreme court justices. it went from a direct election system to a system where candidates were evaluated based on merit and then ultimately appointed by the governor. this is known as merit selection and it's used in about 24 states and also here in d.c. so i think that overall, the yulee case presents us an opportunity, a window into some of the broader issues facing fair and impartial courts, including how we select our judges. because in this culture of high spending, special interest influence judicial elections more and more people, judges state advocates, academics political leaders are realizing that something's got to give. more and more people are realizing that perhaps the idea of electing judges is becoming a broken idea and that the correlative notion of this is something that's going to fix itself is becoming harder and harder to believe. >> thank you, scott. ed, to my left is -- has been writing some notes to himself. and i'm going to give ed a first shot, and we'll just go in that order to respond to any of the comments you've heard from scott or anyone else. >> the notes are really just to keep track of what people are saying. not necessarily to disagree. and i think tracy, you know, raised the important question of the direction of causality. in terms of, are contributors finding folks who are going to be as a matter of judicial philosophy sympathetic to their perspective? or are the judges being influenced by the contributions? i think that's a very difficult issue for the inexact art of so-called political science to detect. but starting to be interested in what some of these studies have to say. i will just say one comment. matt talked about the fact that there are other restrictions on judicial speech. that's surely true. what the distinction here, i think, we're talking about speech related to campaigns. and i think that is different from all of the other examples that he cited. so, if anyone has any comments on that -- i would welcome them. >> i thought, ed, you raised some interesting points. and putting aside broader notions of judicial philosophy in how we select those, i do think left to right, there's generally broad agreement that the nature of the judicial office differs from legislative and executive positions. and i think this is particularly important. regardless of how you view the democratic process in the other branches of government, how responsive you expect your governor or state legislators to be to their supporters and the people who got them into office, for a judge, in terms of the parties before them, it is flatly unconstitutional to favor one party over another because they supported you. you are required to apply the law to the facts of the case and not favor one party or another. and one of the main questions here is, with the nature of the judicial office differing from executive and legislative positions, can we regulate judicial elections differently to account for the due process concerns that are raised by the judicial office? and i think one thing to tease out and make clear, in this case, there are two -- and ed spoke to the standard of review. and regardless of the level of scrutiny that is applied, one of the questions is whether or not there is a compelling state interest at stake that allows the government to regulate. and here there are two critical state interests at stake. one is impartiality. that goes to the studies tracy talked about, whether or not there is bias introduced into the judicial process through campaign contributions. and the other and i think equally important is the appearance of impartiality and the public confidence in the courts. and that gets to the polls and the studies that scott was discussing. the court, the supreme court has emphasized over and over again that the judicial branch depends critically on the public's confidence in the courts. the old adage, the executive has the sword, the legislator has the purse and the judiciary has the public's trust. and when we see these very high numbers indicating that the way these elections are happening now is undermining the public's confidence that courts are in fact fair and impartial, i think that raises important concerns above and beyond whether or not judges actually are favoring contributors over noncontributors. >> tracy? >> i would just speak to -- i want to speak to a couple of things. one, i want to build on some things that both scott and matt said about florida in particular. i think to the extent you want to understand the rules in florida, you need to appreciate that florida is not unique in the amount of change that there's been in the methods of judicial selection. so while we're accustomed to the federal courts, of course, have been the same since the founding, there's been dramatic change over time in the states in terms of how they choose their judges and how they regulate those methods of selection, including things like the candidate issue here. and these were not experiments for no reason. they were born out of specific crises that the courts like the courts in florida faced of corruption and bribery and the like. so we should think about this cannon in the context of states struggling with real problems they've had. beyond research, like the research i've talked about that finds relationship that might be more subtle and not readily observed. and indeed, as i mentioned not , necessarily conscious. it is not that we are hypothesizing that judges are intentionally favoring these people. it's just the inevitability that if you ask for money from someone and they give it to you, psychologists identify this as a sense of debt or obligation and you feel like you must do something for that person in return. the second thing i want to mention is them speaking about in particular the personal solicitation because ed raised this. i think it's a very interesting question. to what extent do bans on personal solicitation do much work? is it merely campaign contributions and not the method by which you get them that's significant? and we don't have empirical research that tries to hone in on that distinction between any contribution and whether the contribution is the request of -- in response to requests. but there is, of course, a lot of psychological literature like that. i mentioned that when you ask for something and someone provides it to you, you do feel a sense of obligation to that individual. and i think the judges, most judges that i've spoken with and this is quite informal would say they're very happy about the personal solicitation ban because of situations like the one matt hypothesized of asking people you know appear in your court on a regular basis to give you money for your campaign. so the personal solicitation ban strikes me as a relatively modest attempt, as scott characterized it, to try to regulate the effect of campaign contributions on the behavior of judges. >> i have a couple of questions i'm just going to throw out. and my fellow panelists are free to answer them. first of all, i haven't read every brief. but one of the initial questions that springs to my mind is where is sandra day o'connor? has someone gotten to her? and has she presented her opinions, which we think we know about this case? i mean, she has dedicated her post-court life to the idea of you know, judicial selection. and has warned about the dangers of judicial elections. an all this stuff. has somebody corralled her and asked her to chime in? >> i haven't. [laughter] >> ed hasn't. >> i believe that she is riding circuit in the ninth circuit. it would be improper for her to comment on this case while it's pending. i will note that she was one of the five judges, justices in the majority, in the white case in 2002. and in an interview subsequently several years later, she was asked after she stepped down off the court if there were any decisions in particular that she regretted. and she mentioned white as one of the cases where she felt that she voted the wrong way. and explained she was concerned that the case contributed to the increasingly messy atmosphere of judicial elections that we've seen. so i wouldn't purport to speak to her, but i think it's safe to say that she has said repeatedly she's very concerned about state judicial elections as they're currently conducted. >> is the ninth circuit one of the circuits that's split with others? when we talk about that? >> yes -- >> clear split. >> well, there's an interesting case called wolson versus kin -- kinkanon. we put in amicus brief in that case as well. and i actually thought that case would have been a better candidate for supreme court review, in which a three-judge panel struck down five codes of judicial conduct. not only the prohibition on direct solicitation, but several limitations on what judicial candidates can do to campaign with other political figures. there are limits on joint appearances, on making fundraising appeals on behalf of political candidates. and the opinion was three judges, three opinions, three completely different approaches to the case. really showed how courts are struggling to grapple with these issues. and shortly before the supreme court granted cert on williams-yulee, the ninth circuit had agreed to take that case en banc and vacated the opinion. so there was a three-judge opinion out of the ninth circuit that struck this cannon and others down. but it had yet to be reviewed by the full panel. and they have now stayed that case pending resolution of williams-yulee. >> some of this discussion is focused on a particular case. some has addressed the broader issue of judicial elections. on that broader point, i just want to emphasize every method of judicial selection has its advantages and disadvantages. and i think it'd be important to sort through what those are -- what i find a little odd about those who oppose judicial elections at the state level is they tend to favor the so-called missouri plan, merit selection rather than something modeled more along the federal plan. that is the -- the missouri plan gives a tremendous amount of power to local bar groups to, i think there could be some variation from state to state. i'm speaking generally here. but to present a slate of three or five candidates to the governor. and the governor has to select from those candidates. i think the federal model where the executive nominates and a body confirms is much more appealing than this missouri plan. but, again, my broader point is any system you can look at the incentives and disincentives it has for judicial candidates. you can see advantages and disadvantages. i think if you just focus on one and and emphasize its flaws, you can ignore that others have their vulnerabilities, as well. >> just to put a bow on it. senator connor has put out a plan, a recommended plan of how to select judges. while it retains an election element, in that there are retention elections after a judge or justice is appointed, she's put her name behind a plan that gets rid of the direct election of judges. >> all while she continues to sit as an active judge on the courts below, which is something remarkable that raises its own questions of judicial ethics. >> another question i had as i was reading through the briefs was this argument for the folks who support overturning the ban who contend it's so underinclusive. it's so measly in the attempt to prohibit this practice or to solve this problem that it's unconstitutional. so that, you know, you ban the direct solicitation, but the campaign manager, right, can solicit. and you, you know, the candidate can basically get around the information. the candidate can get the information about who donated and so forth. >> can write thank you notes. can volunteer human labor. those are some of the arguments made. >> yeah. right. and, you know, as you read through them, you begin to realize that on the one hand florida says, look, we really have this problem we need to solve and here's how we've chosen to solve it. and on the other hand, you look at it and you're like, well, it's not much of a solution. there are so many sort of weasely ways around it, it really is no solution. so i guess the question i have is, is florida at the vanguard of -- is this cannon the most aggressive in the nation? are there other states that have gone beyond what florida has done to more aggressively prohibit the direct campaign contribution? and how do you think the court is going to -- how do we think the court is going to look at this underinclusiveness issue? >> well, there are states that do go further. there are states that prohibit their judges from even learning who contributed to their campaigns. i think one of the issues with you know, trying to prohibit the additional elements that you mentioned with underinclusion is, in practice that could be a very difficult thing to do. the nice thing about florida's rule is it's fairly bright lined, it's easily administerable, there's a lot less work going into enforcing it. and i think in terms of the personal solicitation, i think ed made a good point that it is more effective to have your principal ask. and i think particularly when the principal is a judge there's an element of coercion that whether intended or not is felt by donors. and in some of these cases that have come up at other levels there have been business groups that have weighed in and said one of the reasons they support the personal solicitation ban is it's much easier to say no to a campaign manager than it is to a judge. and i think that -- and one other thing that i think that is interesting for is that one reason many campaign finance restrictions are struck down is that the court is suspicious that they're not really about getting rid of corruption. that they're in practice incumbent protection. and i think this is an interesting provision where certainly a nonjudge candidate would in many cases like to make a direct solicitation. but i think it's particularly coercive for a donor to be asked directly by a judge that they are likely to appear before. and i think this is a provision that is unlikely to be a wolf in sheep's clothing, that is really about protecting incumbents rather than trying to protect the judicial integrity. >> and if you look at the bigger picture, about half of all campaign contributors are lawyers, lobbyists, business interests. so these are the folks who are giving to the justices in the first place. when the code was put into law in 1973, about 20% of disciplinary actions that have you know, judicial ethics related diciplinary actions, have been related to personal solicitation bans. have they been directly tied to this provision. if you look at why it was put in in the first place, there were three campaign contributors convicted of bribery on a lower court level, a justice tried to intervene and stop the bribery charges. when he could not stop the case , went up to the florida supreme court, the justice sat for the case, heard the case and voted to dismiss the bribery charges. so there was a direct solicitation there. another example, there was a golfing friend, a golfing buddy of one of the justices who personally asked if he could write the opinion about a public utilities case going in front of the court. so i think florida properly identified that these were cases that can be tied to face-to-face contact. the importance of cutting and severing that, you know, personal element to the relationship was critical. >> one other question, and then i'm going to turn it over to you guys, is the issue of recusal. the folks who, again, want to get rid of these sorts of ethics rules say, well, the obvious and easy thing is to promote recusal, right? the judge who is -- who becomes known as taking money from a donor, the donor comes before her or him, the judge has an obligation to recuse. and that should be the method by which we solve this problem. my view is the recusal is a broken concept, that far too few judges recuse themselves when they should. including some on the supreme court. but i'm wondering what you think the issue of recusal, how it's going to play out either in the oral arguments or in the decision itself. is that going to be what the supreme court grasps onto as it says we need to do something? >> if they do, it would -- at the very least be ironic. i would say while we at the brennan center believe recusal is very important, we do agree there's a lot of room for improvement. and we have several room for -- several proposals for ways to strengthen recusal practice. one of the concerns, and it's a fair point. in the case versus massey, justice roberts in his dissent, he goes through a very long list of questions that show that at the very least it can be a messy process that is difficult to carry out with precision. i think when recusal is obvious, it can be pretty easy to administer. but there are many marginal cases that are really tough questions. and as you mentioned, in many states, judges rule on their own recusal motions. and the standard of review is often extremely deferential. so in practice, there's never an objective review of a recusal motion. so i think recusal, while very important, is certainly no panacea. and importantly, recusal is a case-by case basis. and when we're talking about the public's confidence in the courts and how personal solicitation impacts that, that is a systematic problem. and a case by case solution is not going to work. and, in fact, this was another point, and recusal ironically can weaken the public's confidence in the courts in some instances. if they think judges are too partial to sit on a case and have to step aside. >> i want to get tracy. >> yeah, so i think recusal, it's often the normative punch right on studies that show negative relationship between campaign contributions and judicial decision making. but it's simply impractical. let's deal with appellate courts separately from trial courts. it's impractical for appellate courts for a couple of reasons. one is that the effect of business contributions so be -- is to be more favorable to all businesses. so recusal cannot change that impact, because it may not be the specific business that's in front of you, but rather the fact that you have a large number of business donors who will care about your decisions with respect to businesses is simply going to make you support any business that appears before you. recusal doesn't fix that. in fact, the principle of a common-law system is that judges decide a very small number of cases explicitly, but effectively decide many more cases, right? they're highly leveraged institutions. you look at the u.s. supreme court's deciding fewer than a hundred cases a year. we obviously know their impact is much broader than that. you know a decision you make in a particular dispute is going to affect businesses, law firms lawyers that face similar issues. so recusal really can't get at the underlying problem at an appellate court because appellate courts make law and are going to decide cases that don't affect merely the parties before them. i think on a trial court level the problem is it's simply impractical, because we wouldn't have any judges to sit in certain cases. if you're a defense law firm, you represent criminal defendants in a particular trial court. you're going to donate to all of the judges that you think have a chance of being elected, in order to ensure they're favorable to you in a particular case. can they recuse themselves from -- if all those trial judges recuse themselves, who is going to hear the case? that certainly would be in a court like ms. williams-yulee was running for, in limited jurisdiction in florida. you're talking about repeat player lawyers contributing, you simply would rule out any judges. recusal i think sounds good in theory. matt has already done a great job showing how it has all kinds of other problems, but for appellate courts and trial courts it is not realistic. >> i also don't think much of recusal as a very effective means of addressing any problem that exists. i'm not sure, i think tracy is thinking that it anyone who contributed triggers a recusal which strikes me as a rather extreme measure. perhaps there could be alternatives. but i guess a broader point would be i agree with andrew that i think judges don't recuse as often as they should. i think we probably disagree on which examples we would cite but that may illustrate part of the problem. but i think there also is a culture among all nine supreme court justices that they're not going to be second-guessing each other's nonrecusal decisions that this is something that, you know, that they're confident each gets right. so they may have greater faith in the effectiveness of recusal than i think the rest of us do. just one last point, i mean, tracy, you seemed more agnostic before on the direction of causality when discussing the effect of campaign contributions from business and most reisn'tly you seem to be adopting a particular view of the direction of causality. so -- >> it's because she's sitting near matt. [laughter] >> well, i would just say the study that i'm thinking of that looked at business decisions was the one that did the best job of demonstrating direction of causality. but -- you didn't say this, but i think it's a fair statement any empirical study is defined by the population of cases it's looking at. right, it's a sample. i would be the first person to say that we can only then draw inferences from the sample. so the study i'm thinking of did the best job of actually isolating causality. but i don't want to be taken to mean that judges are behaving necessarily unethically or knowingly if they're favoring particular interests. i think that it's human nature this reciprocity principle, and that's the concern. >> now, you folks have been waiting patiently as we've droned on here. now it's your turn. i've been reminded 17 times that you have to have a microphone in front of you when you ask your questions. i was actually apprehended briefly before this and told to remember. so if you would raise your hand, we'll get the microphone to you you can ask your questions, and we'll do our best to answer them. the microphone is there, and so is the question. >> mark sherman with ap. i just wondered if maybe with the exception of ed, if 95% of people are persuaded that contributions make a difference in judicial decisions, and if the empirical evidence also suggests it, then why do so many states elect judges, and why has there not been just a wave of states going away from that? >> i would like to -- do you want to take a first crack at it scott and then -- >> i think historically there have been adjustments to these sort of problems. states have had particular situations like in florida that would cause them to be more responsive to these issues and to change ways of limiting outside influence, special interest influence. but for the most part i think that this issue, while the polling says that people are concerned about it, it's not something that people get energized about. i'm in, i think if you ask the average person they might not even be aware that judges are elected in their state and judges typically down ballot are not getting the attention that issues closer to the top are getting. so it doesn't mean that the need isn't there. it's just that perhaps reforming things procedurally have always had more of a hindrance than some of the more high-profile issues associated with it. i think it's a difficult thing to connect to people. >> i can add a little historical context. if you would like the longer , story there is an interesting amicus brief in this case filed by professor jed shugarman. you can read it on scoltus blog or on the website. in a nutshell, this goes to a point that ed and i endorse that there is no system to picking judges. in the 1800's, most states used a federal model. one of the weaknesses of the federal model is it can be conducive to cronyism, where executives are more likely to pick their friends and close supporters necessarily than perhaps the best judges. and the age of machine politics in the 1800's saw just a proliferation of party hack judges, and the reaction was to move to judicial elections as a way to try and take power away from those machines and to make the judiciary more independent from the other branches. >> progressive reform, undoubtedly, right? >> right. and every reform spurs counterreform. and there's an evolving process. and so elections were very much an attempt to promote a more independent, impartial judiciary. so they are largely a historical vestige of their time. >> tracy? >> i just agree largely with what people have to say. every selection method impacts judges' decisions. elections were, as matt noted, adopted in an effort to try to check the abuse, perceived abuse, of the appointment process. i don't think it was merely perceived. the evidence is pretty strong on that. but in terms of the specific question of why don't voters then change the method of selection, what's interesting in the florida case, since that's the case before us, is they did change the method of selection for appellate judges. they went to a form of the merit selection with retention plan , but not with trial judges. not with the judges that they think of as the judges in their lives. and i think that's pretty interesting, to try to understand if voters feel that this tension between accountability and impartiality is one that they would like to resolve when the judges are closer to where they are. what's disappointing, of course is that judicial races are low salience races. we know individual voters know very little. they're least likely to vote in judicial races. so i think in terms of answering the question why do we retain judicial elections, i think it's because of the ideal of accountability. and the challenge is that, of course, we don't really have that in the races generally. but i certainly agree with ed that there's no perfect system and no perfect judges even if we had a perfect system. yes, sir, give us a sec. [laughter] >> hi, i'm with transparency international usa. i had a comment and a question. the comment is based on the fact that i began my legal career as a state prosecutor if miami, florida. and i think it sort of goes to what andrew said earlier that my experience was -- i don't really feel it makes like a huge difference whether the judge directly asks or whether or not there's a campaign committee. i mean the practice in miami, , which is the largest, most populous jurisdiction in florida, is that the legal community is still fairly small, and campaign committees would organize, you know fund-raisers, oftentimes at bars and all of us prosecutors who made $30,000 or $40,000 this a year would come for the free beer, and the defense attorneys would come to contribute. i think in the criminal side of things where i was practicing -- and this is my question for tracy. you had mentioned you see particularly closer to elections judges sort of become more law and order focused. and yet the prosecutors are not the ones donating the money. and so i sort of have a question as to how that actually works. because we don't have any money to contribute. it's the defense bar that has a fair amount of money. so i can see sort of on the civil side where certainly money may play a larger role, but the criminal side, i sort of have a hard time seeing how those studies would actually validate the suggestion that the campaign contributions do have an impact. but as a more general matter, it would seem to me that there's very little actual distinction especially at sort of county levels, where everyone knows everyone and the judge can look at the list of who's contributed. it doesn't really matter whether or not it's the campaign committee that asks or the judge that asks, the judge is going to know at the end of the day who his friends are and who are not his friends. so i'm curious, again, sort of why, you know, there has not been more of a move to, you know -- florida passed these laws to solve this problem, but it doesn't seem like this particular law solved the problem. and especially when you think about the massey case, i think there was a trip to the south of france involved in that one, too. so the issue seems to be not so much the direct solicitation but the campaign contributions. >> the criminal defense or the criminal case findings are not as direct in effect as the effect in cases involving law firms, and say tort suits, mass litigation, businesses and business disputes between individuals, or businesses as defendants in tort cases. in those cases the hypothesis is and what they're testing is a direct effect. a business gives, a law firm gives, it does better in court subsequently. or similar firms, similar businesses do better in court subsequently. the theory behind the effect on criminal's rights is instead that if a business wants to oppose you or a law firm wants to oppose your re-election typically the best argument to the public is not you're against the position that favors my business, favors especially if you're a plaintiff's lawyer favors plaintiffs' lawyers. the best argument is you're not law and order. this is, in fact, what we see. so the funding or especially in a post-citizens united world and the funding behind campaigns to unseat judges is funding from entities typically indifferent to criminal cases, but they recognize that the best ad is about a criminal case. and so that's the theory behind it because you're certainly right. prosecutors are not substantial donors to judges, and in many states are not allowed to donate in fact to judicial campaigns. >> i just want to add something. one of my colleagues at the marshall project, christy thompson, just did a long piece last month on this issue judicial elections and the campaign ads that rise up against them. and, you know you're dealing , with one of the most cynical components of campaigns, and especially judicial campaigns. and the idea that these business interests who care about tort reform or who care about jurisdiction or liability or who care about other issues aren't going to come to consumers of news and television and papers and say, you know let's band together and reduce the liability. they're going to come and say you know, this judge is soft on child sex offenders. and, you know, those ads are more and more pervasive even as there is this countermovement in this country, i think, to be a little bit more sensible about crime and the dramatization of crime. i think that's going in one direction, these ads are going in the other direction. and obviously they're effective because they're pervasive in all of these states. if they weren't working, they wouldn't be happening. >> as to why states are barring only solicitation by a candidate rather than also by these committees, correct me if i'm wrong, but i think this is the aba code proposal, and reflects an understanding of the first amendment concerns would be far more severe if there were a broader band. -- ban. >> yes, sir. >> we're making it increasingly difficult for mr. microphone man to -- pretty soon it's going to be in the ceiling. >> thank you. bill troy from the aba. i'm drawing this question from memory rather than recent reviews so i may be totally off base. as i recall, 2.5 years ago judge lipman in new york on a recusal issue put in a threshold of $2500 for campaign contributions for recusal. has that gone into effect and has any of you kind of looked at it and how is that working? >> slightly different. it's not actually recusal. it is -- it takes place through the assignment system. so if a judge has received more than $2500 contribution -- and the amount differs slightly based on the level of judges. we elect our trial judges in our -- and our immediate -- and our intermediate apple it judges. -- appellate judges. our high court judges are appointed. so if a judge has received that much, the administrative office of the courts automatically assigns the case to a different judge and the judge never even knows that they were potentially getting that case. we are in the process of doing some research on various recusal regimes and trying to figure out ways to assess their effectiveness. but i think it's a very interesting system. it completely removes the discretionary element from the challenge judge. it takes away any sort of, you know, appearance that a judge is a judge in their own case. and we think it's a very interesting system. >> it sounds like quite an incentive to contribute heavily to judges you don't want on your cases. >> one of the issues with any recusal practice is there is the potential for gamesmanship. and that's one of the reasons why it is so effective to design a really effective judicial regime. >> and there are systems that gives the opposing counsel the option of keeping the judge in case they're conflicted about hitting the maximum. so that's an option. >> an easy one for you. >> thanks so much for bringing this event together. my name's michael beckel, i'm a reporter at the center for public integrity here in washington, d.c. and in terms of this notion of candidates doing the direct solicitation versus their campaigns, judicial races are not something i'm quite as familiar of as say federal candidates running for office. so i was curious how professional are -- you know we've got these 39 states that have different things. you know, in all of these cases, are we assuming that there's a judge, there's a campaign manager, there is a treasurer? or are in some cases some of these races really just sort of one person operations and what's a practical difference versus the campaign making a solicitation versus the judge making this ask? >> while you guys are thinking of a response to that, go online and look at some of the websites. i mean, for example, some of the justices in texas, some of the websites that they have up are as professional as -- they're not one-person shows. i haven't done any empirical studies, but from what i've seen, not just in texas but elsewhere, they're often very sophisticated operations because there's more money available. i mean, it's an investment, right? if you're a judge and you want to stay a judge or if you're a judicial candidate and you want to become a judge, that's part of the price of doing business . which ironically is something that the donors are saying, that they want to get something for what they pay for, and they expect to get something for what they pay for. my sense is just from writing about it a couple years ago and last year, it's a very sophisticated operation at this point in most cases. >> and i say there is a big difference between states and between races, as we have documented. many state supreme court races are just multimillion dollar affairs. they are huge, sophisticated well-funded, expensive operations. going down to, say, the case we're discussing today, you might have a much smaller affair where not much money is raised and spent in a case, and perhaps you could have a very small campaign committee of only a couple people. one thing i would say is, it doesn't seem especially onerous to require an aspiring judge to read the rules and follow them. if they are unable to do that, i think we should question their fitness to sit the bench. >> we have stumped you? no more questions? well, great. we appreciate you being here this morning and listen to us. and hopefully you guys have taken something out of this. we will be around after to answer any questions. [captions copyright national cable satellite corp. 2015] [captioning performed by national captioning institute which is responsible for its caption content and accuracy. visit ncicap.org] >> here are some of our featured programs. on "afterwords," the pitfalls of group decision-making, and what to do to avoid them. and part of the college series. we talk with recently published professors at johns hopkins university on the impact of hip-hop on politics, and efforts to cure malaria during world war ii. anderson university professor brian dirck uses abraham lincoln's life to understand the views of what americans on race and slavery both for and during the civil war. and sunday afternoon at 4:30, margaret sanger, her legacy, and the impact on the birth control movement. find our complete television schedule at c-span.org, and let us know what you think about the programs you are watching. call us, e-mail us, or send us a tweet. join the c-span conversation. like us on facebook. follow us on twitter. >> this week marked the start of the 114th congress, where we saw members take the oath of office. this is 45 minutes. >> thank you. >> thank you. >> nice to see you.
MiamiFloridaUnited-statesNew-yorkYuleeMissouriTexasFranceWashingtonDistrict-of-columbiaAmericansAbraham-lincoln