failure to include dollars related to construction of the agro and bioscience security facility to replace the aging plum island. you and i have had a number of conversations, and i will live within my six minutes today to talk about this non-germane topic, but -- and we'll have a greater chance to visit in the homeland security appropriations hearing in which you and i will be together in just a few days. ..

>> that was a highly contested to refute competition and we look forward to continued construction. we believe it needs to be build and we need to get on with it. later in september of that year, you talked about in the future. we need to get prepared for the next generation. and again we need to be confronting the things that we face today and the things we will face 10 years from now. that the series has continued with your testimony and others from homeland security, the u.s. department of agriculture. and i would like for you, i hope, reiterate that the department, your position as secretary, continue to support and belief in the importance of

building this facility, and to explain to me the idea of a reassessment which as i read in press reports is a reassessment in scope only, not in concerns about safety or in concerns about location. >> that's right, senator. and you are right, that the president does not request in the budget and appropriations for the impasse. part because last year we requested $150 million. the house ultimately appropriated 75. the senate appropriated zero. we ended up with 50. and that, a lot of extra requirements put on the project, as you just have stated. what we have done in this years budget is allocated $10 million. that will go to related animal research at a state university. i talked this over with the governor brownback, among othe others. and in light of the budget control act and the other

changed circumstances that we have to deal with, and in light of the fact that we have not been able to persuade congress to really move forward in a substantial way funding the impasse, we have recommended that there be a reassessment in light of the budget control act, in terms of not of location, not in terms of both of which are, stand by the position i've stated. but in terms of scoping and what needs to happen so that this project can move forward with the right level of appropriations. >> madam secretary, thank you. i would comment that solution to lack of funding by congress is not for the administration to not request funding. the solution to the problem is continued support, and encouragement from congress to act. as you say, the house

appropriated 75 million last year. the senate and the conference committee was agreed upon to 50 million. you also are requesting reprogramming for additional planning of money within this years budget. again, the money that is there needs to be spent as quickly as possible. i would ask and you by letter shortly to continue the funding of the $40 million that is available, is appropriated, and that is a result of the report filed this week can be spent to complete the federal share of the utility portion of this facility. based upon what i have heard you say and what i have read that you have said, it's not about location. it's not about the site, and it may be about the scope of what will occur. but the utility that is still important and will be necessary regardless of the scope of that project. so we are going to ask you to continue the funding that you already have committed to and

are authorized to now spend, this $40 million, on utilities. and i would add to that point, we have appropriated $200 million, federal dollars. the state of kansas has put in nearly $150 million. this is a partnership and we need the federal government to continue its partnership on the utility portion, we are waiting on this year that you are not authorized to spend, to be spent. i appreciate the answer to my question. i have considered you an ally. consider -- continue to consider you an ally. my plea is let's work together to see that this congress moves forward on an issue that is important, just as cybersecurity is, to the economic security and future of our nation. >> senator, i would be happy to work together with you on his. >> thank you very much. we need your help. >> thanks very much, senator moran. for the information of the members, the order of arrival today is now in senator landrieu, pryor, brown, carper,

johnson. will go to senator pryor. >> thank you, mr. chairman. thank you for this very important meeting. always good to see you, madam secretary. let me start if i may, madam secretary, with the question about, i think you've already pretty much said that you feel like we need a statute, but i'm curious about what specific authority you think your agency or the federal government does not have in this area that you need. what specific authority do you feel like you need to accomplish what you need to do here? >> i think the specific authorities that the statute contains, the most important is the ability to bring all of the nation's critical infrastructure up to a certain base standard of security. and to outline the process with which that will occur. >> and let me ask you on a little different topic. i know that in reading some of

the news stories, trade publications, et cetera, the private sector seems to have hesitation about sharing too much information, and understandably so. you know, they may fear that a competitor will get it, or in a great liability issues for them, or whatever. but do we have an effective mechanism for the private sector, stakeholders, to share their best practices and potential threats and those concerns without raising issues of, you know, their own security and liability, and even antitrust concerns? >> no. in fact, another major improvement in the bill over the current situation is it clarifies that kind of information, sharing can occur without violating other federal statutes, and i trust, the electronic communications privacy act. we have had situations where we have had delay in being able to

get information and to respond because the lawyers had the first of a company or whatever, had the first assess whether they would be violating other federal law by alerting the department of homeland security that an intrusion had occurred. and i think as you and i can both appreciate, when the lawyers get it, it can take a while. >> we understand. >> again, the new bill would clarify that that should not be a problem. >> okay. and you are comfortable without a new bill is structured in that area? >> yes, i am. >> and let me ask about lessons learned. dhs has recently discussed, and it's been discussed about dhs, that some of the work being done under the chemical facility antiterrorism standards program, cfas, has not really been done as quickly or as thoroughly as maybe it should have been.

and as you know, this bill provides requirement that dhs we do similar type assessments. so are there lessons learned in the cfas experience that might indicate that we can put that problem behind us, and that we can comply with what this law would ask you to do? >> yes, senator. first of all, with respect to cfas, no one is more displeased than i am with some of the problems that have occurred there. there is an action plan in place. there are changes in personnel, among other things. and that program is going to run smoothly. and now the security, the security plans are being evaluated. the tearing has occurred, and the like. >> there are lessons learned there? >> and there are lessons learned. as there are in all things. and this bill is less prescriptive than cfas. first of all, this is a very

regulation light bill. this is a security bill. this is not a regulatory bill per se. but in terms just management and organization, yes, there are some lessons learned from cfas. >> garate. i know a lot of times when we create news media accounts about cybersecurity, and even as we discuss it among ourselves, oftentimes we tend to focus on large companies, and bridges that large companies experience. but the truth is a lot of small and midsized companies carry a lot of sensitive information. is dhs working with small to midsize companies in any way to reach out to them and talk about best practices, or anything like that? >> we conduct a lot of outreach activities with small and medium-sized businesses, on a whole host of cyber related areas. so the answer is yes. >> great. and that's just, we always want to make sure that our small businesses are taken care. obviously, if they are the weak link in the chain that's a real

problem. >> sender, as i continue to emphasize, when we are talking about the security of core critical infrastructure, if that goes down, a lot of the small businesses are dependent on that, and they will fail. >> that's exactly right. also, we've also been talk about the federal government but also state governments have the same issue in their states of cybersecurity. you're a former governor, former attorney general, as is the chairman here, general lieberman. so you appreciate that from the state perspective. are you working with states to try to talk about their best practices and lessons that you learned? >> yes, we are. and, indeed, we work with a multistate information system, and they are actually located or provide input into the nccic, the center of that we talked about. >> right. mr. chairman, that's all i had. i yield back the bounce of my time. >> thank you, general pryor.

next to senator carper. >> could i have his 14 seconds? [laughter] >> you got it. >> madam secretary, good to see. it is a former secretar secreta, former governor, former congressman. tom ridge, nice to see all of our witnesses. thank you for being here. one of the things, as my colleagues know, i like to do in hearings like this is to see if we can develop consensus. can never have too much of the innocent for the house. my hope is when we adjourn here today will identify not just where we have differences but we will have identified where we can find some common ground. so i asked a couple of questions with that in mind. i want to return to the comment of my colleague from arizona which mention regulation. sort of a cautionary note. i just want to second what the chairman said, regulation can be a problem. it can be problematic if we don't use common sense, if we don't look at cost-benefit analysis. it could be a bad thing. i always remember meeting with a

bunch of utility ceos about six, seven years ago. my first term in the senate, and they were meeting with me about clean air issues, nitrogen oxide. co2. we were trying to decide what our path forward should be. finally, came to this meeting, ceo from someplace down south, kind of a curmudgeonly old guy. he said look, just do this. tell us what the rules are going to be, give us some flex billy, give us a reasonable amount of time, get out of the way. that's what he said. i've always remembered those words. and i think it may apply here today. i want to thank the chairman and ranking of the, susan collins for calling our hearing for working with us. for giving really what the chairman said, he mentioned trying to open up, if you have an idea, bring it to us, and that i think he has had an open door.

some have a technical opportunity. we have a lot of distractions around it, so sometimes that happens. we all know we're being attacked by hackers from across the world, and closer to home is likely to get worse, not better. some cause mischief, some steal our ideas, steal our defense secrets. blackmail businesses and nonprofits and the worst. they are also, the challenges i think we have here, we really need a bold plan, we need a roadmap. i call it a commonsense roadmap to move forward. and i hope again that we can move along that way, too, today. i'm especially pleased with the legislation that is being introduced included number of security measures that my staff and i have worked on some of our colleagues, to better protect our federal information system. having said that, i would like to begin my, madam secretary, but asking a questions that you a couple questions in this area for good.

as you know i've been calling for major changes to the law that controls the federal agencies protect their information, our information systems. and the subcommittee that i chair first look at this issue several years ago we found that federal agencies were wasting millions of dollars on reports that nobody read, nobody read and hard anybody understood. they didn't make us any safer. the bill that is before us today includes improvements to the so-called federal information security management act, factually known as fisma. , respond to threats, not just writing reports about them. from what i understand many inconsistencies, many steps to improve their security networks, largely because the action you've taken and your department to make fisma more effective despite the outdated statute, god bless you, i commend you for being proactive in this area, for putting forward a budget

request that would assure that your department has the resources it needs. here's the question. that was a long lead. a long line of. it would go. can you describe some of the current limitations of the fisma for us, and why this legislation and some of the new tools we give you just might be needed? >> well, i think, one of the key things that this bill would do is by clarifying and centralizing where the authorities live within the government, and how those relate to the fisma, among other things, so that it really sets, as you say, the commonsense roadmap for how we move forward. you know, we have done a lot with the civilian networks, other government. as you know, they have been

repeatedly and increasingly attempted to be infiltrated and intruded upon all the time. we have almost completed the deployment of what's known as einstein to. we were working on the next. we've also in the presence budget request asked for budget, budget that would be centered, held by the part of homeland security, a would be used to help improve our raise the level of i.t. protection within the civilian agencies. >> all right, thank you. frequently, if i could follow-up and just to get more specific. could you talk a little bit more about how your department will be able to achieve what the president requested, 200 so many dollars in federal network security, and how this legislation will impact those activities? could you just drill down on that for a? >> i can give you more detail on it, but basically what it allows us to do and what we will be

able to do is have a fund out of which we can make sure that the civilian agencies of government our deployment best practices, hiring qualified personnel, and other way strengthening their own cybersecurity within the federal government. >> thanks. trying to if i could just say in conclusion, one of the things i hear a lot, certainly until it is they want us to provide the uncertainty predictability and one of things we're trying to do with this legislation and regulations that may flow from it are just that, predictability and certainty. and with that in mind i would say to witnesses, it would be helpful if you could figure out ways not to divide us, help us bring this together. that would be helpful. not just to the committee for the senate but to our country. thank you. >> senator levin?

>> mr. chairman, and our ranking member for taking initiative on this with other college. thank you, madam secretary, for all the work the white house did on a similar bill which you had worked on which i understand is basically part of now this pending bill which is on the calendar. i'm trying to understand what the objections are to though because it seems to me there's a whole bunch of projections in your for the private sector. as i've read at least a summary of bill and i haven't read the bill yet, there's a self certification or a third party assessment of compliance with the performance requirements. i understand there's an appeal of those requirements, if there's objection to it. i understand and believe that the owners of critical infrastructure that are in substantial compliance with the performance requirements are not liable for punitive damage,

which arise from an incident related to a cybersecurity risk. we have here something unusual, i believe actually from the private sector, which is a wave of punitive damages. and i think that's fairly, i don't know that it is unique, but i think it is fairly unique in legislation to say, to weigh the possibility of punitive damages in case of a liability claim. there's a number of other protections in the primaries area, as i read i in the summary of this bill, for the information which must be provided where there is a significant threat which is identified. i'm trying to identify and i'm not going to be able to state it here from the next panel, as to what the objections are. i surely will read a letter from the opponents and will study the bill that senator mccain referred to, but i'm trying to

the best of my ability as we go along to see exactly what those objections are. there seems to be privacy protection here. there seems to be self certification here, which avoids part of a bureaucracy, at least. there's limits on liability where there's good faith defense for cybersecurity activities, as the bills heading says. there's a number of other protections. can you, i don't want you to argue for the people who have problems, but i would like you, to the best of your ability, to address what you understand are the key objections. we will hit them directly. we will read about them. but i think if you can't, give us your response to them so we can have that for the record as well. >> well, i think there are three kind of clusters.

the first is that the bill as a regulatory bill and that will be burdensome to industry to comply, and the answer is that the security bill, not a regulatory bill, it really is designed with making sure we have a basic level of security in the cyber structures of our nation's core critical infrastructure, and that we have a way to exchange information, that allows us to do that without private sector parties being afraid of violating other laws. and so, this is not what one would consider a regulatory bill at all. address senator collins said, it really is designed to protect the american economy, not to burden the american economy. second set of objections what i think revolves around the whole privacy area.

but as the aclu itself acknowledged, this bill really has done a very, very good job of incorporating those protections right from the get-go. and realize one of the reasons why dhs has the role it does is because we have a privacy office with a chief privacy officer who will be directly engaged in this. so the bill i think really addresses some of those privacy concerns. and the third cluster would be, and i think senator mccain kind of alluded to it, that it somehow duplicates the nsa. we don't need another nsa. and just let that, you know, we don't need to clarify the authorities or the jurisdiction of the dhs. and i think there's a misconception there. the plain fact of the matter is, as a chair, the joint chiefs and others, secretary panetta and

others have recognize both the dod and the dhs use the nsa, but we use it in different ways. so we are not duplicating or making a redundant in sa. we're taking the nsa and using it to the extent we can within the framework for the bill to protect our civilian cybernetwork. >> understand the department of defense basically supports this legislation. what i can stand at least it does, and is that your understanding as will? >> i think not just basically. i think wholeheartedly. >> in terms of the privacy concerns, those concerns met with a privacy officer, but in terms of the information, where there has been a threat, that information when it is submitted to a government entity is protected. >> right. the content is not shared. >> tell us more about that. >> content is not shared. the information shared requires

minimization. it requires elimination of personally identifiable information, all the things necessary to give the public confidence that their own personal communications are not being shared. so it's the fact of the intrusion, the methodology, the tactic used, the early warning indicators, all those sorts of things are to be shared but not the content of the communicate itself. >> thank you. thank you, mr. chairman. >> thanks are much, senator levin. that was a really good exchange. senator johnson? >> thank you, mr. chairman. madam secretary, nice as you can pick first of all i would like to say to senator lieberman and senator collins, i appreciate your work on this. this is i think critically important. it's also incredibly complex. it's appropriate for me ask you a question, mr. chairman. i'm new here but i do want to be breaking protocol. that i may have to consult my council. go ahead. >> i share some of the concerns

of senator mccain, and because this is so important, certainly not a good way to start the process. certainly in light of his objection and those of ranking those, are we going to consider doing, not taking this to the floor directly? will that be reconsidered? >> i don't believe so. i suppose if people want to raise the question, but i think -- there's been a long process here. bills have been reported on this committee, out of commerce, intelligence, foreign relations have had some stuff, all done, not all done on a bipartisan basis but most of them were. senator reid get really agitated about this problem last year, began to convene the chairs and then held a joint meeting, which in these times is very unusual. bipartisan meetings, the chairs and ranking, all the committees, urged us to work together to reconcile differences. son came to the table, as i

said, some didn't. we worked very hard to try to bring people than. i think, you know, i can't speak for senator reid but i think his intention is to take the bill that is the consensus bill now, and bring it to the floor under his authority under rule 14. but whether really open to amendment process why to think will rush this through. and will be plenty of time for people to be involved. i'm sure i speak for senator collins. we are open for any ideas anybody has been that i appreciate. this is important to get right, so i couldn't agree -- >> to me, the most important thing is to get it right, but also to get it done as quickly, as quickly as we possibly can get it right, we should give it enacted. because the crisis, the threat is out there. >> senator collins? >> mr. chairman, if i could just add one thing. and that is, this legislation has gone through a lot of

iterations. it was reported first in 2010. i realized -- [inaudible] deck was not part of the committee at that point. but our staff has shared with the senator's staff, draft after draft after draft. i invite it into briefings. i know that senators come to some of the classified briefings that we have had as well. so we have been -- we have invited the input from -- >> again, i'm sincere in my appreciation of the work you are doing, and in the desire to get this right and lose legislation. with that in mind i know the house has worked on a bipartisan bill, h.r. 3523, which is a very slim down version. probably an important first step and try to get information being shared between government and private sector. is that something you could support in case this thing gets all snagged up? maybe move toward something like that? [inaudible] >> go back and look at that, but

i don't -- i think there may be some part of that that are included within this bill, but this bill is a much stronger and more comprehensive focus on what we actually need in the cybersecurity area. given the threats that are out there. >> in terms of the carveouts, that was one of the big questions this individual expressed is if you are really trying to great cybersecurity, why would you carpet service providers and people in the heart of the? it's kind of like you're going to steal money, go to the bank where it is. why would we carve out the service providers to? >> well, i think a few things, but i think from our standpoint if you focus on the nation's critical infrastructure and to really focus on the standards they have to meet, and you want to avoid some of the complexities that deal with, like the isps and the like and where they're located,

international jurisdiction among other things, that the carveouts is appropriate. in fact, it helps move the legislation a long. >> have you done a cost assessment in terms of the costs of complying with these revelations? >> well, i think, i think talking about cost -- it is not our intent to have an undue cost on the core critical infrastructure of this country. it is, however, our belief that the cost of making sure you practice a base level, a common base level of cybersecurity should be a core competency within the nation's critical infrastructure. and so while we don't want an undue cost, we do want the recognition that this is something that needs to be part of doing business. >> has there been an attempt to quantify that? or will there be an attempt to quantify the cost?

>> i don't know. i would imagine, just thinking about it, that there will be many entities that already are at the right level, but sadly there are others that are not. and given that we're only talking that infrastructure that is intruded or attacked would have a really large impact on the economy, on life and limb, on the national security. i mean, you're talking about a very narrow core part of the critical infrastructure. the fact that they all have to reach a base level is a fairly minimal requirement. >> last quick question. i'm aware the chamber is not for this bill, american bankers assocation. you have a list of private sector companies that would be, have to comply with this that are in favor of its? >> all, there are a number of them, and i think they have been in contact with the committee. but we can get that. >> thank you, mr. chairman. >> thanks, senator johnson.

secretary napolitano, appreciate your test went very much. you made an important point here i think. first, that we define the group of owners and operators of private cyberspace in our country that are ultimately regulated here, that can be forced to meet standards very narrowly. to include only those sectors, which if they were attacked, cyber attack would have devastating consequences on our society. so you are right. it will cost some to enforce this, to carry it out, but it will be a fraction of what we would have, what it would cost our society if there was a successful cyber attack. and i go back to the initial, you know, 910, 9/11 question. after 9/11 when we just couldn't do enough to protect ourselves from another 9/11. and have the opportunity here to

do something preemptively, attentively, methodically. and that much less cost to our society overall. >> that's right, mr. chairman, and i think as you and i both know to come and i think senator collins did in our opening statements, it is our responsibility to be proactive and not just reactive. we know enough now to the chart the way ahead, and the bill does that. >> i agree. god forbid there is a cyber attack. and we don't create a system of protection of the american cyberspace. there is an attack, will all be rushing around frantically to throw money at the problem. that's going to be after a lot of suffering that occurs as result. so we have a real opportunity to work together. i'm not saying this bill is perfect. it's darn good after all it's been through. but the press -- you've been very helpful today.

i think he very much and we look forward to working with you. senator collins? >> thank you, mr. chairman. i, too, want to thank the secretary for her excellent testimony and the technical assistance of the department. for the record, i would like to submit what is a very clear statement from the chairman of the joint chiefs of staff, at a hearing before the armed services committee earlier this week. and general dempsey said, i want to mention for the record that we strongly support the lieberman-collins-rockefeller legislation dealing with cybersecurity. so the secretary's comments in response to the question, about whether these the department stand where she said wholeheartedly, is exactly right. and the department testify to that, and i would submit that for the record.

thank you. thank you. without objection submitted for the record. thanks, secretary. have a good rest of the day. >> thank you. >> call the final panel. secretary ridge is first. i apologize for keeping you later than we had hoped. secretary ridge, but we have -- secretary ridge and the honorable stewart baker, james lewis, dr. james lewis and start churning. -- scott charney. [inaudible] >> gentlemen, thank you for your willingness to be here, to testify, and for your patience. although, it got pretty interesting at times during the hearing, didn't it? [laughter] secretary ridge, in a comment that only you and i into other people would appreciate, i don't think we'll be going to the

common man together tonight. that's another story. [laughter] [inaudible] i know. okay, thanks so much for being here. we'll hear your testimony, and then we will understand if you have to go, because i know you have another engagement and you're already late. so please, please proceed but i thank you very much. first of all let me tell you what a pleasure it is to be back before the committee. as i told you before, my 12 years in the congress of united states i did enjoy being on that side of the table rather than this, but every time i'd appear before this committee the engagement has been civil, constructive, substantive. and i hope i contribute. i hope the data we agree in part, disagree in part today, doesn't preclude another invitation at another time. it's a great pleasure to be before you. i testified today on behalf of the u.s. chamber of commerce, which as you well know is the world's largest business federation, represent the

interests of more than 3 million businesses and organizations of every site, every sector, every region of this country. for the past year, year and a half i have chaired the chambers national security task force, which is responsible for the defiled and imitation of the chambers homeland and national security policies. and very much consistent with the president's concerned, this committee's concern, concern from both sides of the aisle. you are probably not surprised that cybersecurity has been at the top of the list. when we have met with dozens and dozens of private sector companies and vice president for security, bricks and mortar of cyber, this is very high, maybe the top of their lives right now. so it is in my capacity as chairman, with a perspective, also as the first secretary of homeland security that i thank you for this opportunity to appear before you regarding cybersecurity in ways in which we can secure america's future. at the very outset, senator

lieberman and senator collins, one of the mindsets that i do want to share with you is that you need to add the chamber of commerce to the course of people sounding the alarm. they get it. and why do they get it? because the infrastructure that we are worried about that protects america's national interests and supports the federal government, state government and local government, is the infrastructure that they operate. in addition to being concerned about the impact of cyber innovation and incursion on their ability to do their job on behalf of the federal government, they also have 300 million consumers, one way or the other, they have to deal with. so they joined you. they join that force. not only in terms of the urgency of dealing with a threat, but i would dare say and do so respectively, they are better

position to be able to the consequences of systemic failure, vis-à-vis a cyber attack that even agencies of the federal government. and on top of that, they have, their interest to protect, i do share interest of shareholders if they're publicly traded. they have the consumer, they have the suppliers. so we are in this together but i think it's important to understand that the chamber joins, that appreciates both the urgency indian with something, and i would say respectfully better understands from a micro level, the horrific consequences to them and to their community, to their brand, to their employees into this country, for a significant cyber attack. as you also know, the industry for years has been taking robust and proactive steps to protect and make their information

networks more resilient. there's been much discussion with regard to processor, and let me just talk very briefly, and going to ask unanimous consent to get another minute or a minute and have, and and i apologize for that. as the first secretary i remember the national strategy we created in 2000 to talk about securing america but we didn't talk just about people, we didn't talk about bricks and mortar's. we talk about cyber attacks as well. in 2003 as has been referenced by secretary napolitano, talked about cyber attacks as well. you move from the enabling legislation that creates the department, homeland security presidential directive number seven. in anticipation of a testifying i read what it is all about. it says establish a national policy for federal departments and agencies to identify and prioritize united states critical infrastructure and key resources and to protect them from tears or to goes on to talk about protection from cyber

attackers will. 2009, the national infrastructure protection plan which again encompasses all they had done before and sets up very, very specifically based on, number seven was great the sector select agencies and the sector coordinating council, the same mandate. the point being we don't need a piece of legislation at least in the chambers point of view that it defies critical infrastructure. we have been working on that for 10 years. started with enabling legislation, and you understand that process. what we do need and where we tip the hat because compared to the first mark of the president's bill, information sharing although we pride like to take it all of it is a vast improvement from the one that was initially placed, initially considered by the administration. and again we're not ready to waste its totality, but the focus of it being bilateral, we believe is the way to go.

so at the end of the day, ccp, and our judgment nobody need for the. we have a process in place. people have been working together for 10 years. you have cybersecurity experts in the sector select agencies, so not only to take a definition that appears to have no walls, ceilings or floors, but it appears to be redundant. and secondly it does, someone used the word requirements. one of the great concerns we have, and i will conclude, is requirements prescription, prescriptions our mandate. mandates are regulations, and, frankly, the attackers, the new technology, moves a lot faster than any regulatory body or political body will be able to move. so in my judgment again we need the chamber agrees, that the sections in here with regard to the international component, the

public awareness component, fisma component, is some of the others we applaud and celebrate, and hopefully if you tie this together come if you're looking to real deal with this in an immediate way as quick as possible with a more robust information sharing proposal, marry it with the house and then you have that bipartisan agreement. so i was hurried, i appreciate and respectfully request my full statement be included as part of the record and thank you for the opportunity for appearing before you. >> thanks, mr. secretary, and we will definitely include your statement in full in the record. am i right that you have to leave? >> i think it's a little too late. >> can you stay? >> i am prepared to answer a few questions. >> let me ask -- >> a set of five. thank you for asking to i guess the question is, do you want us to ask a few questions out and have you go? or with the sufferings of --

>> i think -- i appreciate that. >> i'm going to yield so senator collins, and if there's anything left to ask when she is done -- >> thank you, mr. chairman. secretary ridge, as you know, i have the greatest respect and affection for you personally. and the greatest respect for the chamber of commerce, which is why i am disappointed that we don't see this issue exactly the same way. i would also note a certain irony, since the chamber itself was under cyber attack by a group of sophisticated chinese hackers for some six months, at least, during which time the hackers had access to apparently everything in the chambers system and the chamber was not even aware of the attack until the fbi alerted the chamber in may of 2010.

.. >> people in the private sector have reported the potential, have reported -- haven't verified it -- incidents to the federal government, and they said, we knew. what do you mean, you knew? >> well, that's one -- >> you cure some of that problem -- >> i was just going to point to that, we have very robust information sharing provisions in our bill. >> right.

>> that will cure that very problem. but the fact is in drafting this latest version of our bill, we've taken to heart many of the concerns raised by the chamber. and thus, just to clarify exactly where the chamber is on these issues, i do want to ask your opinion on some of the changes that we've made in direct response to the chamber's concerns. for example, we now have a provision that says that entities that are already regulated by existing regulations would be eligible for waivers, and entities able to prove that they're sufficiently secure would be exempted from most of the requirements under this bill. the bill would require the use of existing cybersecurity

requirements and current regulators. does the chamber support those changes that were incorporated in response to the chamber's concerns? >> well, i think you've incorporated several changes, senator collins, and i do believe, i mean, i can't speak directly, but i believe that's one of them. and i think it also goes to the point, however, that some of those, some of that oversight's being done within the existing process and protocol, and with the dramatic potential changes in information sharing it's a system that'll work. i mean, one of the questions i had when i listened to the national, the chorus of people who support the bill, i just wondered if secretary of defense believes that the defense industrial base likes the cyber model of information sharing that was announced by the department of defense in june of 2011, or they would prefer to be regulated. um, i think there's some unanswered questions here.

but i think the point that i want to be very strong about, senator collins, is that, is that you've heard some of the concerns. and we're grateful for that. >> well, that's my point as we've, frankly, bent over backwards to try to listen to legitimate concerns without weakening the bill to the point where it can no longer accomplish the goal. another important provision of the bill, the owners of critical infrastructure -- not the government, not dhs -- would select and implement l the cyber security measures that they determine are best suited to satisfy the risk-based performance requirements. does the chamber support having the owners of the infrastructure decide rather than government mandating specific measures in. >> well, i think, again, as i

recall and interpret your legislation correctly, the chamber likes the notion and embraces the notion that the sector's select agencies, the respective departments and agencies who have the sector coordinating councils have been working on identifying critical infrastructure and sharing the kind of information that we think is necessary to not immunize us completely because the technology and the hacking procedures is going to change, but to dramatically reduce the risk. in fact, it is in their best -- it's in everybody's interests, particularly the owners to move as quickly as possible. i mean, the logic that has been applied to relieving, i guess, cisco and microsoft and others so they could move adroitly and respond to the risk, it seems to me would be pretty decent logic to apply to everybody else in the economy as well who don't want to be burdened by a series of regulations or prescriptive requirements. >> well, since the private sector under our bill is

specifically involved in creating the standards, i don't see how that produces burdensome standards. since the secretary has to choose from the standards that the private sector develops. again, another change that we strengthened in our bill. another question that i would have for you, i assume that the chamber supports the liability protections that are included in this bill so that if a company abides by the performance standards and there's an attack anyway, the company is immune from punitive damages. >> well, they haven't tapped me on the shoulder -- >> well, a young woman is nodding. >> i presume they do. if i were the chamber, i would certainly encourage them to embrace it wholeheartedly.

>> well, my point, and my time's expired, but my point is that there are many, many provisions in this bill that we changed in direct response to input from the chamber, and i'd like the chamber to acknowledge that. there's one final point that i want to make. when you were talking about that ceos are invested in cybersecurity because of the impact on their customers and their clients, and so it's in their own self-interests. i cannot tell you how many cios, chief information officers, with whom i have talked who have told me if only i could get the attention of the ceo on cybersecurity. we're not investing enough, we're not protecting our systems enough, and it's just not a priority for the ceo.

so i would suggest to you to talk to some cios because i think you'd get a totally different picture. >> well, i appreciate that, senator collins. l i, you know, i'm familiar with quite a few major companies in america and what they're doing with regard to cyber, and my experience is a 180 from yours. i realize that there are probably some people out there, i don't imagine too many organizations and anybody wouldn't like a little bit more money to enhance their capability to safeguard or to manage the risk, but i'll take you at your word that there may be some ci os who feel very strongly and have reflected that in their statements to you. i think at the end of the day, though, you've made a valuable contribution, you've listen today the chamber. we applaud those things we agree with, and we're just going to respectfully disagree that you're going down the path very similar to to what we're concerned about, a prescriptive regimen. a light touch can turn into a

stranglehold if it goes too far down the process, and if you take a look at the chemical facilities, antiterrorism standards, what was to be a light touch may become very prescriptive. once the legislation was passed, there were members of congress, your colleagues, who said, well, that's not enough, and we may need very specific technology and regulations in order to vet the people that work. so, again, it's that slippery slope that i think they're most concerned about, and i very much you giving me a chance to articulate it before the committee. >> thank you, mr. chairman. >> thanks, senator collins. i have no further questions, secretary. thanks for being here. we're glad to liberate you to catch the next plane. >> you're very kind. i thank you. my great pleasure. i said before, i look forward to future opportunities in the what it's worth department to share my thoughts with this committee. i thank my friends. >> we do too. >> senator akaka, best wishes to you. thank you. >> stuart curtis, former general

counsel for the much-mentioned today nsa from 1992-'94 and assistant secretary at dhs from 2005 to 2009 during which time we have benefited greatly from your counsel and service. thanks for being here x we would welcome your testimony now. >> it's a great pleasure. thank you, chairman lieberman, ranking member collins, senator akaka. it's a nostalgic moment to come back here, and i want to congratulate you on your achievement in moving this bill in a comprehensive form as far as it's gone, it's a very valuable contribution to our security. i just have two points, but before i do that, i thought i'd address the stop online piracy act ably -- analogy, the idea that this is like sopa, and the internet will strike it down. i'm proud to say if i can channel senator benson for a

moment, i knew sopa, i fought sopa and, mr. chairman, this bill is no sopa. [laughter] >> here here. >> i opposed sopa for the same reason that i support this bill. as a nation, as a legislature our first obligation is to protect the security of the this country. sopa would have made us less secure to serve the interests of hollywood. this bill will make us more secure, and that's why i support it. um, just two points on why i believe that. we know today the most sophisticated security companies in the country have been unable to protect their most important secrets. this shows us how deep the security problem runs. we also know from direct experience, things that i saw when i was at dhs and that have emerged since, that once you penetrate a network you can break it in ways that leave

behind permanent damage. you can break industrial control systems on which refineries, pipelines, the power grid, water, sewage all depend. and we've had a lot of analogies today about this is like september 10 or september 11. if you want to know what it would be like to live through an event where someone launches an attack like this, the best analogy is new orleans the day after katrina hit. you'd have no power. you'd have no communications. but you also wouldn't have had the warning and the evacuation of most of the population of the city, and you wouldn't have the national guard in some safe place ready to relieve the suffering. it could, indeed, be a real disaster, and we have to do something to protect against that possibility. that's not something the private sector can do on its own. they are not built to stand up to the militaries of half a dozen countries.

and that's why it's important for there to be a government role here. i do think that in this bill -- that this bill in contrast to the views of the chamber, i think you may have gone a little far in accommodating them, and i'll just address one point that i think is particularly of concern. i fully support the idea that there should be a set of performance requirements driven by the private sector, implemented by the private sector with private sector flexibility to meet them as they wish. but the process of getting to that and then getting enforcement is time consuming, it could take eight years, it could take ten years if there's resistance from industry or a particular sector. and it may be worth it to take that time to get standards that really are something that the private sector buys into and is willing to live with, but i think we have to recognize that in the next 8-10 years we could have an attack, we could have an incident, we could have some

very serious trouble or a threat that requires that we move faster than that statutory framework would suggest. and so i would suggest that if there's one change that i would make to this bill, it's to put in a provision that says in an emergency where there really is an immediate threat to the life and limb, the secretary has the ability to compress all of the time frameses and to move quickly from stage to stage so that if we only have a week to get the grid protected, she's in a position to tell the power companies you'll be here on tuesday and bring your best practices because by friday you're going to have to start implementing them because we know there's an attack coming this week. that is something that we need to be able to do and to have the flexibility to do. thank you. very helpful. thank you very much. we'll talk more about that. dr. jim lewis, thanks for being here. director -- looking for the exact title. director and senior fellow, technology and public policy program at the center for

strategic and international studies. and dr. lewis was also the director of the csis commission on cybersecurity which began its work in 2008. thanks so much. please proceed. >> thank you. thank you, senators, for giving me the opportunity to testify. you know, when we hear that getting incentives right and letting the private sector lead or sharing more information will secure the nation, remember that we've spent the last 15 years repeatedly proving that this doesn't work. and from an attacker's perspective, america is a big, slow target. some people say the threat is exaggerated. this is really unfortunate. you've talked about the pair rells -- parallels with september 11th, but in some ways we're on path to repeat the september 11th here if we don't take action in the very near term. the threat is real and growing. military and intelligence services with advanced cyber capabilities can penetrate any corporate network with ease. cyber criminals and

government-sponsored hackers routinely penetrate corporate networks. the new attackers ranging from iran and north korea to a host of anti-government groups are steadily increasing their skills. the intersection of greatest risk and weakest authority is critical infrastructure. national security requires holding critical infrastructure to a higher standard than the market will produce. this bill has many useful sections on education, research, securing government networks and international cooperation, and they all deserve support. but the main event is regulating critical infrastructure for better cybersecurity. without this everything else is an ornament, and america will remain vulnerable. low-hanging fruit will not make us safer, and, you know, one way to think about this is if you took the section on critical infrastructure regulation out of this bill, it would be a car without an engine. so i look forward to what we see

next week. um, there are all sorts of objections to moving ahead. well designed regulation will increase innovation. companies will make safer progress. we've seen this with federal regulation of cars, airplanes, even as far back as steam boats. regulation can incentivize innovation. everyone agrees that we want to avoid burdensome regulation and focus new authorities on truly critical systems. the bill as drafted takes a minimalist and innovative approach to regulation based on commercial practices, so i, um, appreciate the effort that has gone into that. many in congress recognize the need for legislation, and this committee, the senate and others in the house deserve our thanks for taking up this task. but the battle has shifted. people will try and dilute legislation, they'll try and put forward slogans instead of solutions, and they'll write in loopholes. the goal should be to strengthen, not to dilute. and so two problems need

attention. the first is the threshold for designating controlled critical infrastructure. cyber attacks in the next few years are most likely to be targeted and precise. they probably will not cause mass casualties or catastrophic disruption. if we set the threshold too high, it is simply telling our attackers what they should hit. so we need to very carefully limit the scope of this regulation, but i fear that we may have gone a bit too far. the second is the carveout for commercial information technology, and others have raised this. it makes sense that industry does not want government telling them how to make their product. that's perfectly reasonable. but a blanket exemption on services, maintenance, installation and repair would, first, undo essential work started by the bush administration and, second, leave america open for a stuxnet-like attack, right? so these parts of the bill should really be removed, and in particular i'd call your

attention to the paragraph a and b of section 104b2, right? any important legislation there's a delicate balance between protecting the nation and minimizing the burdens on our economy. this bill with some strengthening, um, i think can achieve that balance and best serve the national interest. the alternative is to wait for the attack. my motto for 2012 in cybersecurity is brace for impact. so i thank the committee and will be happy to take any questions. >> thank you, dr. lewis. your voice is an important one to listen to, and we will, we do. scott tyranny is our last witness today, corporate vice president, trustworthy computing group. that's a good job at the microsoft corporation. thanks for being here. >> thank you. chairman lieberman, senator akaka, thank you for the opportunity to appear at this important hearing on

cybersecurity. in addition to my role as corporate vice president for trustworthy computing, i serve on the president's national security telecommunications advisory committee and was co-chair of the csis commission on cybersecurity for the 44th presidency. microsoft has a long history of focusing on cybersecurity. in 2002 bill gates launched our trustworthy computing initiative. as we celebrate the tenth anniversary of that effort, we are proud of both our progress and conscious of how much work remains to be done. while i.t. companies are providing better cybersecurity, the world is increasingly reliant on cyber-based systems, and those attacking such systems have increased in both number and sophistication. cyber attacks remit one of the more significant and complex threats facing our nation. with that in mind, i commend the chairman, the ranking member, this committee and members of the senate for its continuing commitment to addressing cybersecurity. we appreciate your leadership in developing the legislation that was introduced earlier this

week. over the past few years, you have helped focus national attention on this urgent problem, offered constructive proposals and conducted an open and transparent process to solicit the views of interested private sector stakeholders. microsoft believes the current legislative proposal provides an appropriate framework to improve the security of government and critical infrastructure systems and establishes an appropriate security baseline to address current threats. furthermore, the framework is flexible enough to permit future improvements to security, an important point since security threats evolve over time. while the internet has created unprecedented opportunities for social and commercial interaction, it has also created unprecedented opportunities for those bent on attacking i. t. testimonies. securing i.t. systems remains challenging, and it is important that legislative efforts designed to improve computer security meet three important requirements. first, legislation must embrace

sound risk management principles and recognize that the private sector is best positioned to protect private sector assets. second, the legislation must enable effective information sharing among government and industry members. third, any legislation must take into account the realities of today's global i.t. environment. i will discuss each of these important issues in turn. first, sound risk management principles require that security efforts be directed where the risk is greatest and that those responsible for protecting systems have the flexibility to respond to ever-changing threats. to insure that this happens, it is important that the definition of critical infrastructure be scoped appropriately and that the owner of an i.t. system ultimately be responsible for developing and implementing security measures. we believe that the current legislation which allows the government to define outcomes but allows the private sector owner of a critical system or asset to select and implement particular measures is the right

framework. second, successful risk management depends on effective information sharing. for too long people have cited information sharing as a goal when, in fact, it is a tool. the goal should not be to share all information with all parties, but rather the right information with the right parties. that is, parties who are positioned to take meaningful action. we appreciate that this legislation attempts to remove barriers to information sharing by specifically authorizing certain disclosures and protecting the information shared. finally, as a global business we are very cognizant of the fact that countries around the world are grappling with similar cybersecurity challenges and implementing their own cybersecurity strategies. we believe that actions taken by the united states government may have ramifications beyond our borders, and it is important that the united states lead by example, adopting policies that are technology neutral and do not stifle innovation. it must also promote cyber norms

through international discussions with other governments. unlike some traditional international efforts where government-to-government discussions may suffice to achieve desired outcomes, it must be remembered that the private sector is designing, deploying and maintaining most of our critical infrastructures. as such, the u.s. needs to insure that the owners, operators and vendors that make cyberspace possible are part of any international discussions. i would note in closing that security remains a journey, not a destination. in leading our trustworthy computing effort over the last ten years, i have witnessed the continual evolution of microsoft's own security strategies. technologies advance, threats change, hackers grow stronger, but defenders grow wiser and more agile. the committee's legislation which focuses on outcomes and insures meaningful input by the private sector represents an important step forward. microsoft is committed to working with congress and the administration to help this, insure this legislation meets these important objectives while

minimizing unintended consequences. thank you for the leadership that you have shown in developing this legislation under consideration today and for the opportunity to testify. i look forward to your questions. >> thanks very much to you, too, mr. charney. let me ask all three of you a threshold question, no pun intended. as you can hear from some of the testimony and some of the questions from committee members, there's, there is a question still about whether regulation is necessary here, whether a -- i'm using a pejorative term, whether government involvement here is necessary. and at its purest this argument is that, obviously, the private sector that owns and operates cyber infrastructure has its own set of incentives to protect itself. um, why do we need the government to be involved?

stuart, you want to start? >> sure. it seems to me fundamentally the private sector and each private company has an incentive to spend about as much on security as is necessary to protect their revenue streams, to prevent crime from stealing things from them and the like. it is much less likely that they're going to spend money to protect against disasters that might fall on someone else, on their customers, down the road that are unpredictable. and so there are certain kinds of harms, especially if you're in a business where it's hard for people to steal money from you, but it's easy for them to change your code in a way that could later be disastrous for consumers to view that as not something that you're ever going to get a higher payment for when you sell your product and, therefore, not something that you want to spend a lot of money on. so it does seem to me there are a lot of externalities here that require the government to be involved in addition to the problem that if you are a

baltimore gas and electric, you really don't know how to deal with an attack launched by russian intelligence. >> great. dr. lewis? >> thank you. um, one of the -- sometimes i call them mandatory standards, and that's nicer than regulation, but i wanted to say regulation this time because we've got to put it on the table. >> right. >> we got the incentives wrong in 1998, the first time we thought about protecting critical infrastructure. we thought tell them about the threat, you know? get them together, share a little information, and they'll do the right thing. and as you've heard, the return on investment is such that companies will spend up to a certain level. it's not even clear that all of them do that, by the way. but they won't spend enough to protect the nation. so we're stuck with a classic case of a public good, national defense regulation is essential. and if we don't regulate, we will fail. >> you, um, let me just follow up.

you made a statement in your opening remarks i'm going to paraphrase it which is that a hostile party, nation-state, whatever, intelligence agency, um, could penetrate any, um, any company? [laughter] any entity, any entity of cyberspace in this country if they wanted. did i hear you right? >> you did. the full answer is complicated, so i'll be happy to provide it to you in writing, but when you think of the high-end opponents who can use a multitude of tactics, including tapping your phone line, including hiring agents or corrupting employees -- >> right. >> -- these are very hard people to stop. and the assumption that's probably safest to make from a defensive point of view is that, um, all networks have been compromised. >> mr. charney? >> i always say two things.

first, i would echo what stewart baker said. i think market forces are actually doing a very good job of providing security. the challenge is market forces are not designed to respond to national security threats. you can't make a market case for the cold war. and so you really have to think about, okay, what will the market give us, what what does national security require, and how do you fill the delta between those gaps? the second thing i would say about, you know, looking at regulating critical infrastructure is in my ten years at microsoft i have found as we've struggled with cybersecurity strategies we really live in one of three states of play. sometimes we don't know what to do, and you have to figure out a strategy. sometimes you know what to do, but you're not executing very well. in which case you need to go execute better. sometimes we know what to do and we execute well, but we don't execute at scale. i think there are some companies that do a very good job of protecting critical infrastructure today.

the question is, are we doing it at enough scale to really manage the risk that the country faces? and i don't think we are today, and that's why in our report at the csic commission and my testimony -- >> right. >> -- we are, you know, supportive of the framework that has been articulated in the legislation. >> yeah, i appreciate that. assuming the statistics are accurate or close to accurate about the frequency of exploitation, intrusion into cyberspace owned and operated in the private sector, then that makes it self-evident that there's not enough being done to protect from that. dr. lewis, let me ask you something. you offered a friendly criticism of the bill just before which is that our definition of covered critical infrastructure is too narrow, too high. we're limiting it too much. give me an idea about how you might broaden it if you were

drafting the legislation. >> i think we're talking about, um, relatively simple amendments to the language, mr. chairman. i would look at some of the thresholds you've put in, mass casualties. what is a mass casualty event? for those of us coming out of the cold war, that was a very high threshold. um, economic disruption on a scale -- it's not clear to me that katrina, for example, would be caught by that definition. so i think it's more an issue of clarifying, more an issue of making sure that the smaller attacks that we're more likely to see in the near future -- >> right. >> -- are caught by this threshold, we're not just looking for the big bang. >> okay, thanks. my time is up. senator akaka, thank you for being here. >> thank you very much, mr. chairman. for holding this hearing. i applaud i should say your

tenacity and that of senator collins, rockefeller and feinstein. in pursuing the comprehensive cybersecurity legislation with we're considering today. i also want to thank you and the administration for incorporating my suggestions to the cyber work force provisions of the bill. employees of the department of homeland security are on the front lines of conquering the cyber threat, and we must make sure the department has the appropriate tools, the tools to attract and retain the work force it needs to meet these complex challenges. stakeholders have raised concerns about the privacy and civil liberties implications of certain provisions of this bill. i want to commend the bill's

authors for making progress in addressing these concerns. it is important for the final product to adequately protect americans' reasonable expectation of privacy, and i will continue to closely monitor this issue. fbi director robert mueller's recent statement, the danger of cyber attacks will equal or even surpass the danger of terrorism in the foreseeable future, is a stark reminder that strengthening cybersecurity must be a key priority for this congress. cyber criminals and terrorists are targeting our critical infrastructure including our electricity grids, financial markets and transportation networks, and this has been mentioned by the panelists.

american businesses face constant cyber attacks that seek to steal their intellectual property and trade secrets. however, some obscurity policy has been slow to suggest to these ever-increasing and sophisticated cyber threats. the cybersecurity act of 2012 will give the federal government and the private sector the tools necessary to respond to these troubling threats, i feel. finalizing this important legislation is a pressing priority for this congress, and i look forward to working with you on this. my question is to the panel. finish as you know, the -- as you know, the bill contains new hiring and pay authorities to bolster the federal-civilian cybersecurity work force.

it also has provisions to educate and train the next generation of federal cybersecurity professionals. i would like to hear your views on the challenges of recruiting and retaining cybersecurity professionals. the provisions in this bill and any of the recommendations you may have to address these growing work force challenges. honorable baker? >> [inaudible] >> it is very challenging to find well trained cybersecurity professionals, even in the private sector. this technology has just proliferated far faster than educational institutions could educate people to manage i.t. security and manage the

security. as a result of that, microsoft has actually committed considerable resources supporting programs like s.t.e.m. education or elevate america where we provided over a million vouchers for entry-level and more advanced computer basic skills. but it is a big challenge. and if it's a big challenge for the private sector, you can imagine that it would also be a large challenge for the public sector as they do not have the same pay scale that i have available to me. so this is a big challenge, it's a challenge in just, in both education and in proficiency of the work force. and, in fact, the csis commission issued a report on the challenges of getting an educated, cyber-educated work force. >> and i would just add to that that, indeed, dhs has had particular difficulties in attracting people and working through their personnel hiring

procedures. anything that makes that smoother and more responsive to the market is useful, but finally, most importantly, for every student who is watching this wondering what he's going to do when he graduates from college, these jobs are waiting for you. you owe it to your country, and you owe it to yourself to pursue these opportunities. >> thank you. >> senator, two years ago at the end of july we had an event here on the hill, csis, on education for cybersecurity, and i was kicking myself because i thought no one's going to be here, you know, like on july 29th. it's just stupid. and so i told them, cut back on the food, you know? we don't need -- we had standing room only. we had chairs in the hall. people love this topic. but there's a couple issues to think about. on the government side, we need to have a clearer career path for people to get promoted up. on the private sector side, the education that we get now needs

to be refined and focused. a degree in computer science may not give you the skills, in fact, it probably won't give you the skills for cybersecurity. and so some of the provisions in the bill such as the cyber challenge, other of the programs tap into this real enthusiasm among teenagers, among college students to get into this new field. and i think this is one of the stronger parts. again, doing the education piece is important, but it will not protect us in the next few years which is why we need the other parts of the bill as well. thank you. >> thank you very much, panel. my time has expired, mr. chairman. >> thanks, senator akaka, and thanks very much for the contribution you made to the bill as indicated by your questioning on the cyber work force. it was very important. senator collins. >> thank you, mr. chairman. the hour is late, but i just want to thank our witnesses for their excellent testimony. hearing some of our witnesses on this panel raise some legitimate

questions about whether we've gone too far in trying to accommodate concerns raised by the chamber and other groups makes me think that maybe we've gotten it just right since the chamber's still not happy, and you believe we've gone too far. but in all seriousness, your expertise has been extremely helpful as has the input that we've had from microsoft, from the chamber, from the tech industry, from experts, academics. we really have consulted very widely. and it has been very helpful to us as we try to strike the right balance. this is an enormously important but complicated, complex issue for us to tackle, but tackle it we must. and that is something that i

believe unites all of the witnesses from whom we've heard today. i just don't want whether we consider this to be a response to a 9/11-like attack or a katrina, i just do not want us to be here after a major cyber incident saying if only. and how could we have ignored all these warnings, all these commissions, all of these studies, all of these experts? i can't think of another area in homeland security where the threat is greater, and we've done less. there is a huge gap. whether we got it exactly right on chemical plant security or port security or fema reform, at least we acted, and we have made a difference in each of those

areas. they're not perfect, but we've acted, and we have made a difference. but in an intelligence reform i think we've made a big difference. but here we have a vulnerability, a threat that isn't theoretical. it's happening each and every day. and yet we've seen today by the comments of some of our colleagues this is going to be a very difficult job to get this bill through. i'm confident that we can do it, however, and that in the end we will succeed. and finally, i do want to say to our colleagues, to those who are listening, to those in the audience that we need your help. if you have other good ideas for us, by all means, bring them forward. help us get the best possible bill. but for anyone, for anyone to

stand in the way and cause us to fail to act at all to pass legislation in this year i think would just be a travesty. it would be a disaster waiting to happen for our country. so, mr. chairman, i just encourage you to press forward, and i will be at your side, your partner all along the way. [laughter] we've done it before -- >> and we'll do it again. here, here. thank you. that was, that meant a lot to me, and it's just expressive and characteristic of your independence of spirit and your commitment to do what you think is right for our national security. so we're going to press forward. and the majority leader, senator reid, i'm confident is going to press forward too. as i mentioned earlier, he got a couple of briefings on this

problem of cybersecurity last year, and it really troubled him. he felt that, he feels that there's a clear and present danger to our national security and our economic prosperity from cyber attack. and that's why he's devoted a lot of time to trying to get us to this point that we've reached this week to have at least a foundational consensus bill and why i'm confident he's going to push this, bring this to the floor with the authority he has as majority leader. and i'm optimistic that that may well be in the next work period which is when we come back at the end of february and be into march. the three of you have added immensely to our work here. i do want to continue to work, i don't want to ask a question because senator collins has brought this to such a wonderful ending point, but i do want to over time as we take the bill to the floor invite you to, um,

particularly mr. baker and dr. lewis who have expressed concerns about the so-called carveout. people in the administration still think that with the authority that we have left in there that the language will allow the government to develop performance standards that will require owners of systems to protect those systems even if they might include some commercial products. but i'm not comfort -- i'm not resting on what we've got. so i invite you to submit -- we hear your concerns, and we invite you to submit thoughts to us as to how to do this better, and we promise we will consider those concerns. any last words from any of the three of you? thanks very much for all you've contributed. i thank senator collins again. it's true, we get very stubborn,

the two of us, when we think something is really right and necessary. [laughter] so we're going to plow forward. the record of this hearing will be held open for ten days for any additional questions or statements for the record. i thank you again very much for that. the hearing is adjourned. [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations] >> live pictures from the biltmore hotel in phoenix, arizona, this morning where we are expecting campaign remarks from republican presidential candidate mitt romney. he's speaking to the associated builders and contractors trade group today. arizona's presidential primary is this coming tuesday, and we

will have live coverage of that. we are being told that governor romney is running a few minutes behind, and we'll return for his remarks in about 15 minutes or so. right now, though, your phone calls from this morning's "washington journal." [inaudible conversations] [inaudible conversations] >> again, remarks from republican presidential candidate mitt romney in just a

couple of moments. he'll be speaking to the associated builders and contractors trade group. we'll have live coverage when it gets under way in about 15 minutes here on c-span2.re's [inaudible conversations] >> on wednesday night debate viewers will see the now-familiar four. some of those watching, though, will still be dreaming of chris christie, jeb bush, paul ryan or mitch daniels. as romney's campaign has faltered and his candidacy has lost the aura of inevitability. there has been as much talk about the possibility of a white knight candidate making a late entry into the race as there is about one of the remaining three candidates emerging as the republican nominee. and then there is the notion of the nomination being decided, ultimately, at a brokered convention, something that hasn't happened in decades. a loss by romney in michigan would probably only increase such speculation.

why? polls have shown that republican voters are increasingly dissatisfied with the field of candidates. in a recent cnn poll, the number who were not very satisfied or not satisfied at all had jumped tothat 44%. in a january nbc news/"wall street journal" poll, more republicans graded the gop field as weak than strong. a new gallup poll shows that 55m of republicans and republican-leaning independent voters wish someone else werenig running, but that same poll found that those voters would much rather have a nominee who had secured enough delegates to win the nomination before the august convention than to haveec the nomination decided in tampa. contaminate pennsylvania so again republicans only this morning for this segment, we want to hear whether or not you would support a brokered convention or the g.o.p. nominating contest. this is from the washington times february 16, cary picket

writes -- host: that's what he writes. >> host: now, the last brokered convention of either party wasoe in 1952, and that was the adlai stevenson contest in chicago, and he was the top candidate. he ended up getting the nomination, but it took three rounds of voting. nomination, but it took three rounds of voting. first call up on whether or not a brokered convention is a good idea comes from cal in

cookeville, tennessee. you are opposed to it. good morning. caller: thank you for taking my call. no. i don't think a brokered convention is the way to go. we've only had seven or eight states. i think the media is a little bit wrong with that. i saw the debates and thought for sure mitt romney hit a home run last night. and he's a guy we really need. he is a businessman building staples and a few others. so i don't think we'll have to worry too much about that. there will be talk about other candidates but in the long run i betemit romney will end up with the nomination. host: here's "usa today's" take on the debate last night. santorum gets smacked around in arizona, and in this article they talk about when they were asked to define themselves. the candidates were asked so define themselves by one word.

here were the answers in case you didn't see the debate. ron paul said consistent. rick santorum said courage. mitt romney said resolute and newt gingrich said cheerful. in westchester, pennsylvania, carol, you, too, are opposed to it, why? caller: thank you for taking my call. i watch c-span a lot. especially when commercials are on. i was kind of surprised when they said only 42 -- we still have 42 -- eight states to go. i am following mitt romney. i read his book and listened to it again on tape last summer. admittedly his points like 63 or 59.

it's complicated. anyway, i am from pennsylvania. i would love to see a mitt romney-santorum ticket. thank you. and thank you for taking my call. host: carol thank you for watching c-span. republicans only, do you support or oppose or are you opposed to a brokered convention? (202) 737-0002 if you oppose a brokered convention. if you support, (202) 737-0001 from last night's debate here's mitt romney attacking rick santorum. >> the reason we have this is because arlen specter, [video clip] >> you endorsed in a race, he voted for obama care. if you had not supported him, we would not have obama care.

so don't look at me. take a look in the mirror. >> i supported arlen specter number one because he was the senator of the judiciary committee at a time when there were two to three supreme court nominees and one pore two or maybe all three were going to be out of the conservative block and arlen specter, we had a conversation and he asked me to support him. i said will you support the president's nominees? he said i'll support every nominee arlen specter he supported from the time he took on and saved justice to mas. every nominee he supported passed. host: and here's an color ter's column. what's their problem with romney? he did something even ronald

reagan didn't do, he balanced the budget without raising taxes. he became deeply pro life and vetoed an embryonic stem cell bill meanwhile gingrich lobbied president george bush for a stem cell research issue. romney pushed the conservative -- it would have killed obama care in the crib by solving the health insurance problem at the state level and goes on to write i'm not sure what establishment supports romney? amity face of the establishment? if so, the scun going to be just fine, she writes. i would think the pristine example of the establishment is

editor and fox news contributor bill crystal. but he wants anyone but romney. in 2000 romney was supported by shawn -- michael savage and many others who now seem to view romney as a closet liberal. this is especially baffling because there's no liberal in the republican primary this year. that's ann coulter's column. what do you think? caller: i think that would be great. host: why? caller: well, there's a lot of things that is going on here that i can't understand. number one, i haven't heard one of them candidates talk about the inflation we have in this country today.

definitely caused by the government itself. the inflation we have in the fuel. nobody's talking about the fuel. bringing the fuel down to where it belongs, which caused other inflation. i went to the market the other day and they want $29.99 for a pound of fillet minute-on- -- filet mignon. host: who would you like to see at the g.o.p. nominee? caller: romney. host: mark? caller: good morning. scott, right? host: sure. caller: yes. ok. romney is going to crush. he's going to win. it's over. you know the right-wingers, they are going to cry and try to get everybody to get upset, but it's over.

santorum needs to stand down. host: that was mark in germantown, and here's the hill. senator jim from south carolina said there's a possibility that the g.o.p. presidential race could lead to a brokered convention. speaking thursday on cnn -- this is from a few weeks ago. a brokered convention isn't out of the question. his comments came a few days after rick santorum dominated in colorado, minnesota and misratah. -- and my secure they. alex papa writes about the call to kill the presidential debates. there's the headline there. a little bit of this article.

if i can turn to the right page, that would help a lot i think. there should be no more debates with george stephanopoulos or others in the main stream media picking the questions. not again, the editors wrote in a piece posted online wednesday morning. that's the same media that daily cary water for the obama administration, approach the tea parties as curiosities and persistently skew the public discourse left ward in ways large and small. instead, they argue, debates should be modeled on last year's foreign policy debate cofounded by the american enterprise institute. let the r.n.c. set the number and dates and locations of the debates.

that's in the daily caller this morning. willy is on the line. what do you think about a brokered convention? caller: i am for a brokered convention. i would really like to see jeb bush get in there. and i don't think either romney or santorum or paul or gingrich can really make a good candidate against barack obama. the economy is slowly turning around there, and i don't see where they can have a good argument about him doing such a bad job there. on this foreign policy, he's done pretty good over there keeping us safe, so i would really like to see old jeb bush -- i think he would do a better job than his father and his brother. i think if we get him in there,

>> see washington journal every morning live at 7 eastern on our companion america -- companion network, c-span. mitt romney is about to speak to a building and contractors trade group ahead of next week's arizona primary. >> thank you. it is now my distinct honor to introduce our special guest this morning. after a long and very distinguished career in the private sector, mitt romney turned his focus to other challenges in the public sector. in 1999 the winter games in salt lake city were on the brink of disaster. based on his reputation as superb manager, he was canned to take over. he was asked to take over. in a remarkably short period, he revamped the organization's leadership, trimmed the budget and restored public confidence.

in 2002 the winter games were an unmitigated success. as governor of massachusetts, he vetoed the card check bill sent to his desk by the democrat-controlled legislature, and he fought to reform the state's prevailing wage laws. this morning he wanted an opportunity to share with associated builders and contractors' board of directors his vision to grow our economy and return our nation to prosperity. ladies and gentlemen, please welcome governor mitt romney. [applause] >> thank you, good morning. thank you. [applause] thank you so much, eric and mike, for welcoming me here and

the other members of the national executive committee and appreciate the chance to speak with you. i hope to have the opportunity to see you this morning and to describe why i should be the republican nominee for president and, hopefully, to earn your endorsement. i'd like to have your endorsement and your support in this effort. i, i want to step back a moment and talk a bit about my view for the country and what needs to be done. i'll go back as early as i can remember, my first school days. and this was going to hampton school in detroit, michigan, kindergarten. i remember the room had about 30 or 40 students, and my guess is that each of the parents who sent their kids to that school that morning believed that if their child was raised with the proper values and got a great education and was willing to work hard, that they would have a home of prosperity and security. that's always been america's promise. that if you work hard, have an

education, have the right values, that you can be prosperous and secure. that promise has been broken. in the last three years. over the last three years, you've got some 25 million people that are out of work or stopped looking for work or can only find part-time jobs that need full-time employment, you've seen home values go down, down, down, you see people here in arizona, for instance, about half the people in this state have homes that are underwater, their mortgage is worth more than their home. the promise, the american promise has been broken. and i think it's been broken by a president whose policies have in almost every single circumstance been the opposite of what was needed to turn this economy around. he's proud to say that he did not cause the recession. but he did make it worse. and he made it harder for the american people to recover from that economy. and sometimes i wonder why that is and why it is that it's so hard for people in government to understand what it takes to make an economy work.

and i think the reason is they've never worked in the real economy. when you send people to lead our country who have never had a job in the private sector and then expect them to make things better in the private sector, you're asking people to do what they have no idea how to do. and i, people are really suffering today. i saw a quote from dick armey the other day. he said the american dream is not owning your own home, it's getting your kids out of it. [laughter] i mean, there are kids coming out of school, graduating from high school, graduating from college, they can't find a job. this is what's happened. and we have a president, and the people around him don't understand how the private sector or works, and i do. and i remember, by the way, what it was like to work with folks who had very little private sector experience, almost none at all. i remember in my state we faced a tough economic time. i wanted to see if we couldn't save money by hiring a for-profit jail management company to come in and run our

prisons and jails in massachusetts. because i thought they might do a better job at lower cost than the very large union work force that we had running our jails and our prisons. and so i said to some legislators, i said, look, let's bring in one of these for-profit companies, get a bid and see if they can do it for lower cost than we can. and their response was interesting. they said, well, they can't possibly be lower cost than we are. i said, really? why do you say that? well, they said they have to earn a profit, and we don't. and i said i don't think you understand how the free economy works. the free enterprise system works in part because of an incentive for profit, and where individuals have an incentive for profit, they find ways to do, they find opportunities to do things better and better at lower cost. that's the whole idea. that's what makes our economy work. that's why america's economy leads the world. [applause]

and so i look at the president's policies, and they're borne of a perspective which has been grown in the halls of government and not in the streets of america. and as a result, almost everything he's done has been, has been the opposite of what was needed. you look at the regulatory burden that he put in place. he gave a speech the other day at the state of the union address, and he said we need less regulation. he had this big initiative last summer to reduce regulations. after the initiative was over, they reduced regulations by one-tenth of 1%. i mean, under this president the regulatory burden, the rate of regulatory burden increase has grown at two and a half times that of the prior president. if i'm president, i'm going to say to all of the obama-era regulations, stop, put them on hold, i will eliminate all of those that kill jobs. it's time for us to recognize those regulations are killing

us. [applause] on energy policy the president says he's for all of the above sources of energy, and then, of course, he makes it impossible to drill in offshore deep wells for oil, he gets his epa to put in place fracking regulations to keep us from having a reliable source of natural gas, he makes it almost impossible to mine coal and to use coal. look, if i'm president, i will not only take action to remove those restrictions and get the availability of our own resources here, i will do the easiest thing that i think a president's seen in years which is i will open the keystone pipeline and get oil can from canada -- oil from canada. let's get energy secure. [applause] with regards to tax policy, this president's proposals have raised taxes on corporations. obamacare being one of the worst examples. i was with one, one business just a couple of days ago. they make, they make tests,

diagnostic tests for people who are having various forms of testing being done by their physician. very substantial company. and they're about to be subject to a new obamacare tax. it's a 2.5% excise tax. now,2.5% sounds like a modest tax, but it's 2.5% of their revenues, so the burden on this company is $5 million approximately per year in new taxes. do you think that causes them to add jobs, to grow their facilities, to add employment? obviously, not. and so this president has added taxes on corporations. now, that's a big company. a public company. and it's taxed at the corporate rate. but do you realize how many people work at companies that are not c corporations or taxed at the corporate rate, but instead are taxed at the individual rate? they're what they call flow-through companies, sub s

chapter corporations or llcs. do you know how many people work at those kinds of companies in america of the private employment? 55%. 55% of americans work in businesses taxed at the individual rate. and so what's the president's plan for the individual rate of taxation in america? he wants to raise it. substantially. up to almost 40%. think what that does to employers in small businesses. so he's crushing c corporations with higher taxes there, and he's crushing sub s corporations and individual corporations with higher taxes there. higher taxes does not create jobs. higher taxes kills jobs. this president doesn't get how his policies are hurting america. now, what was my plan for taxation? be first of all -- first of all, for corporate entities that are taxed at the corporate level i will reduce the tax rate from 35% to 25%. that makes us competitive with other nations around the world

and will be an enormous stimulus for job creation. and then at the individual level i'm going to look at all the marginal rates that all of our people pay and lower them by 20%. [applause] and by the way, identify got to do -- i've got to do both of those things without adding to the deficit. in fact, i've got to reduce the deficit. so how do i do that? well, with regards to taxes, i'm going to limit or reduce the deductibility of certain expenses, individual expenses, particularly at the high end so we can maintain the level of progressivity we have today. what does that mean? it means the top 1% of taxpayers today will pay the same share of the total tax burden in the future that they're paying today. i'm not going to be lowering the burden paid by the top 1%, but i'm going to be lowering the tax rate by 20% for everyone.

it also means i'm going to just cut back on the scale of government, and i'm going to eliminate programs. when i was governor of massachusetts, one of the ways we were able to balance our budget despite a $3 billion shortfall was going through the budget and cutting out programs or cutting back programs we couldn't afford. even if we liked them. and i'll get rid of a lot of programs. my test is very simple. is this program so critical it's worth borrowing money from china to pay for it? and if it doesn't pass that test, i'll get rid of it. [applause] so i've mentioned a few things i'll do to help the economy; regulations, energy policy, tax policy. let me mention one more, and i know this is the one you find most, in many cases, most interesting, and that's what i'll call crony capitalism, another policy of this president which is to brush aside the principles of free enterprise and fair play and instead to tilt the entire playing field in

our economy towards the people who financed his campaign. that, in my view, that kind of crony capitalism we have not seen in this country to the extent we're seeing in this administration i don't think in history. and you can see it almost throughout the policies of the administration. one, for instance, trade policy. it's a good thing for american jobs to be able to sell goods to other countries around the world. even nations like china have figured that out. in the last three years, china and the european nations have individually formed free trade agreements or trade agreements with other nations around the world with 44 different agreements. do you know how many agreements this president's worked out? zero. and why isn't he doing that? and why did he drag his feet on our free trade agreement with colombia, panama and south korea? because organized unions didn't want it, don't want it. and so bowing to them, he holds off on trade. i don't have to tell you all the

things he does for organized labor. even before his stimulus went into effect, one of the first things he does just two week before that stimulus was to issue an order forcing the government to use only union labor on construction projects. it goes on. he bailed out the automakers in a way that did not follow the norm process of bankruptcy, but instead gave the auto companies to the uaw. again, the people who had supported his campaign. he, of course, fought for card check. not getting it, he put in place labor stooges at the national labor relations board, and their action has been to try to make every decision in favor of the unions. the decision on boeing in south carolina was one of the most extraordinary and egregious decisions or efforts we've seen in a long, long time. this is a -- [applause] and so by virtue of moving more

and more of the orientation of this president to the people who gave him the money in his campaign, the unions, he basically flies in the face of what it takes for entrepreneurs and innovators to decide to hire people. i, i just don't think he understands how these kinds of decisions are hurt the american people -- hurting the american people and making it harder for our economy to reboot. and the longer it takes for this economy to get stronger and to grow again, the more people in america that are suffering. his policies are hurting the american people. now, what are we going to have to do? we're going to have to change that policy and make sure that instead of having a president that bows to the demands of special interests -- in this case union interests -- that we have a president that bows to the interests of the american people and that we have a level playing field in this country. [applause] ..

>> i also stopped the practice of having the state collect money from people's dues or from their wages to go into union dues to go into political action committees, and so --

[applause] if i become president of the united states, i will curb the practice in this country of giving union bosses an unfair advantage in contracting. one of the first things i'll do, actually on day one, is i'll end the government's favoritism to unions on special projects and fight to repeal davis-bacon. [applause] i didn't know that would get that kind of response. [laughter] i would have said that earlier. [laughter] i also, of course, you'll make sure that workers in america have the right to a secret ballot, and i'll fight for right to work laws.

there's a -- [applause] one of the things i'm going to fight for is to say, you know, we can't have unions taking -- union bosses taking money from the worker's paychecks that is selected by the chief executive officer of union. that's a practice that's got to end. [applause] now, i hope you watched the debate last night. it was fun. i enjoyed it. it was an interesting night. i didn't expect what happened. what happened was we saw, in this case, senator santorum, explained most of the night why he did or voted for things he disagreed with and talked about it as taking one for the team. i wonder what team he was taking

it for. [laughter] my team is the american people, not the insiders in washington, and i'll fight for the people of america, not special interests. [applause] he explained, for instance, why it was he voted against the right repeal the right for work walls. he explain why he voted to protect davis-bacon, why he voted to raise the debt ceiling five times without compensating cuts in federal spending. he explained why it was he voted to fund planned parenthood and why he voted for no child left behind, even though they were not his principles. he explained why he voted for the bridge to nowhere even though it was against his principles. i don't know i've seen a politician explain why he voted against his principles.

if i'm president of the united states, i'll abide by my principles, and my team will be the people of the united states of america. [applause] now, i appreciate the work you're doing, and i know to a certain degree how hard it is. i don't know any industry that's more cyclical than yours. i have a family heritage in your industry. my grandfather was a general contractor. he was from arizona, to idaho, and then to utah. he went broke, i believe, in each state. [laughter] my dad told me he went broke more than once in his life. i remember picking up a phone as a boy listening into my dad talking to his brother, morris, talking about paying off some of their dad's loans. my grandfather didn't walk away from the obligations. not only he throughout his life,

but his sons tried to pay off the loans he was unable to pay off in his life. it's tough in your industry with the ups and downs. my dad grew up as a plaster carpenter. some of you know what that is, others don't. you don't put it up anymore, but you tear it down. [laughter] my dad was skilled at this. he could take a handful of nails, put them in his mouth, and spit them out pointy end forward and bang them in. his skill with putting nails in his mouth was something to behold. i know how tough it can be and what tough times you are going through and have gone through. the fact you're sitting here today is a testament to your economic conservative. if you're not a fiscal conservative, you have to learn how to balance budgets. as president of the united states, i'll balance budgets by

the two things i described. one is reducing expense, reducing spending, eliminating programs, sending some programs back to states. the other way is growing our economy and getting people back to work in the ways i've just described. i'm going to lower the corporate tax rate, lower the individual marginal tax rate, the tax rate that employees 55% of the people. i'm going to end the regulatory burden that's killing and crushing the country, open up energy resources, open up trade, crack down on china steals our jobs through unfair labor practices, and i'll ensure as we deal with unions, and i'm happy to exeat on a level playing field. i know the american people and free individuals and union and non-union can compete, but it's time for the government to let the competition begin on a level playing field and do not tilt in favor of union bosses.

we'll have right to work, get rid of davis-bacon -- [applause] and return to the principles of the declaration of independence and the constitution. i fear what you're seeing in this country is the move towards the kind of government dominated social welfare states you see in europe with a government that rewards their friends and with enemies that take on more and more power and crush the american spirit. i believe that what was part of the american greatness and is part of whaté+zs makes us the economic engine that we are today is the brilliance of the founders and the inspiration of providence that when they wrote the declaration of independence, they wrote that we were endowed by our creator for our rights, not by a king, and among them were life and liberty and the pursuit of happiness.

in this country, we would be free to pursue happiness as we choose. we would not be directed by our government as to how we can pursue our happiness. we would not be limited by the circumstances of birth how our happiness is pursued. we would not be told to join a yiewn your against our will. we can pursue happiness as we choose. that principle, freedom, our commitment to life, and our unwaiverring commitment to the freedom of individuals to pursue their enterprises in the way they choose, those things brought people from all over the world here, seeking freedom, seeking opportunity. we are an opportunity nation. this president and his friends are trying to turn us into a nation we wouldn't recognize, more like europe. i want to be an opportunity nation where people have the ability to achieve their dreams. if i'm president of the united states, i'll keep america true to the constitution, work with

you, work with the american people, and ensure the nation remains as its always been, the hope of the earth. thank you so much, and i'd appreciate your help. thank you. [applause] thank you. [applause] [applause] >> thank you, governor romney, for taking time out of your day to be with us today. this meeting stands in recess until 9:30. [applause]

[inaudible conversations] >> the rest of the meeting is going into recess. we'll leave it at this point and let you know about upcoming programs on the c-span networks. at 5:30 eastern, a look at the future of the u.s. space program with remarks from florida senator marco rubio calling for space exploration. sherrod brown talks about the success of orbiting the earth. newt gingrich calling for a u.s. colony on the moon, and at six eastern, stewart powell talks on the plans for nasa and what republican candidates say about the space agency. at 6:40, nasa administrator charles bolden out lines the administration's budget proposal

for his agency. a look at u.s. space policy starts at 5:30 p.m. eastern here on c-span2.

>> number one, no one is immune in the current situation. it's not just a euro crisis, but one that could have spillover effects around the world, and, you know, we'll hear from others, but what i have seen and what we see in numbers and in forecasts is that no country is immune and everybody has an interest in making sure this crisis is resolved. >> i have been in public service, most of which involved in public finance over four decades. let me share with you, i've never been as scared as now about the world. what's happening in europe, looking at what experience was in -- not in any other crisis we had, and the crisis we had in the 1990s. this is very big issue. first of all, i agree entirely

with christine that nobody's immune. we are all connected to each other. >> you can see the whole discussion tonight at eight eastern on c-span. more from the world economic forum tomorrow including a panel on the political and economic future of africa. plus, the ceos of several major corporations talk about the role their companies play in the global economic recovery. >> at the 1968 olympic games, they raised their fist in the black power salute. >> this is black power. they intimidated so many people, white people in particular, by using that phrase, "black power" because when they used that word or phrase "black power" it made them think destruction. blowing up the statue of liberty or ground zero, destroying america. it was not anything about

destroying america. it was about rebuilding america and having america to have a new paradigm in terms of how we can be what each and every one of us did and that's going to elementary school and high school learning about the land of the free, the home of the brave. we all wanted to be great americans, but as young athletes, we found something was wrong. someone's broke, and we want to take our time to evaluate and then take our initiative to fix it. >> discover about african-american history during black history month on booktv on c-span2, and online at the c-span video library. search and share from over 25 years of c-span programming at c-span.org/videolibrary. [applause] >> 34 states around the country are in litigation about the congressional redistricting plans, some plans to be considered by the u.s. supreme court this term. stanford law school had an all

day conference looking at what's ahead of redistricting in the coming decade. this is an hour and 15 minutes. >> i want to thank the folks in the center and the law review and those in the audience. i first met nate 15 years ago about what would you say? five yards from here in when he was a student in the course i taught, and he organized, i think, probably the first voting rights symposium here at stanford, and i wrote an article for it about the upcoming then my -- my -- milenial redistricting, and i compared it to another productivity. redistricting like reproduction conveys deep passion about identity, instincts for

self-preservation, increasing reliance on technology, and often a need to pull an awe rather delicately at the end and it usually involves somebody getting screwed. [laughter] we're now in the middle of the next cycle, and to quote what you know as one of my favorite poems, much is taken, much abides, and though we are not small strength which in old days moved earth and help, that what we are, we are. part of the topic today is who are we, and why are we here? our format will be that we're going to set up the rest of the day by identifying and briefly talking about in an interactive conversation the various law that governs redistricting. there are, i think nine potential constraints, and they

fall into three overarching categories. there are federal constitutional constraints on how we districting can be done. there are federal statutory constraints on how redistricting can be done. there's state law constraints. i'll list them briefly for you, and then we're going to talk about them during this panel to give you a sense of where the line is now and where we think some of the major questions are going to be the next -- this coming time around. several constitutional constraints begin with one vote. they involve the question under the equal protection clause of no acceptance gerrymandering, and in a goldilocks way, no redistricting goals to racial considerations. you can't take race into account too much in either of two directions. the seminal statutory constraints are one that very

seldom is talked about, but the requirement initiated first in 1842 that federal congressional elections be conducted from single member districts. section two of the voting rights act, in addition to forbidding for use of plans that results in minority voters not given the equal opportunity to participate in elect candidates of their choice, and section five of the votes act which, in addition to prohibiting purposeful racial discrimination provides a plan cannot reduce minority voting strength relative to the pre-existing plans. there's state law constraints. there's substantive ones varying from state to state. for example, some states there are definitions of compactness and requirements about districts being compact. in other states there's things like so-called whole county

provisions require that redistricting try to keep certain political subdivisions in line, and then on top of the substantive constraints, there's a variety of procedurals in different states for how redistricting should be accomplished, and so with that broad overview, we'll go through the nine different kinds -- nine different con straints on the redistricting process to talk where we might see movement in the coming decade and what the issues are. we'll start off with one person, one vote, and here there are two rules. one of the nice things about the constitution for those of you who spend a lot of time looking at the text of the constitution, you can look at the text of the constitution forever and you're not finding the words "one person, one vote" there, but there's provisions that the supreme court held both, one

person, one vote. article one, section two of the constitution says that the members of the house of representatives shall be chosen by the people, and the supreme court held that the words "by the people" means using one person, one vote district of equal size. similarly, the supreme court held that the equal protection clause with regards to state and local elections requires the use of one person, one vote, and so where are we now on one person, one vote, and what do you think is potentially changing with that? >> also i thank the folks from slipper, which is what it was called when i was here, and during my first year, i was editor on slipper. not only pam's student -- >> a cautionary tale of where you might end up. >> right, right. [laughter] be careful what you wish for so now like many people here, the last year obsessing about the redistricting process. just when you think you get clarity, all you get it more

chaos and ambiguity. one person, one vote is one of those areas. the supreme court is about to entertain a case dealing with congressional districts. we had previously thought, or everyone went into the process thinking that you're basically having to draw districting to be perfectly equal. they have not said exactly that, but if you look at where most states to sort of behaved, you draw districts where the deviation is plus or minus one person; right? now it's not that accurate, all fiction, at most you say it's a constraint on partial gerrymandering given what's happening, and that was the map, but now in west virginia, there's a case coming up that has plus or minus deviation of about.0 5% and looks like the supreme court might reconsider the precise rules there, which is interesting because there's a

push in the other districts, and 10 in the last decade, there was a case out of georgia, lawyers versus cox, and there was a gerrymandering that overpopulated the republican areas and underpopulated the democratic areas and had regional pat terns to it and the supreme court said, well, normally people think you can deviate, not require absolute population of the body based on the argument pam mentioned and other considerations, so you are allowed to deviate, but not for overpopulating one party's supporters or favoring one part of the state at the expense of another, and then it looked like you're going to have a more precise quality with districts,

and 5 lot of state bodies this term have been behaving like that, trying to push down the deviations to much lower than they have been historically. now, one of the things about the one person, one vote rule, is it's a misnomer because while the court says you have to have the quality, it's not clear as to the quality of what; right? and so while we all, at the congressional level and state legislative level use aggregate populations to add up the total number of people being equal in the district, the court, at least, you know, has one case where they say, well, you can use total registered voters population and break up districts according to that, but we all draw districts based on equal numbers of people. that's cause to issues this time around. one has to do with the prisoner population, and so new york, delaware, and maryland passed laws requiring the reallocation to the prisoners because in new

york, there's a serious regional effect because the prison population comes from new york city and most prisons are upstate, and that has a racially difference impact, regional impacts and there's challenges to the lawings in the court, and one thing new york, the task force that's supposed to give us the data, we don't have the new data set useful to draw districts based on that, but the prisoner issue is a live for this cycle, and the other, not life, but it's on the radar. it has to do with citizens, and there's a frivolous case that was litigated in texas saying, well, you shouldn't draw districts on the total population, but on the basis of citizens, equal number of citizens. we don't have the short senses we all get -- census we all get doesn't ask if you're a citizen which poses a problem, but because we have paid attention to citizenship in

other context, particularly sex two of the voting rights act, there is this looming question out there as to how the interaction between what we call the denominator of the one person, one vote case. the state of louisiana tried to petition for an original action in the supreme court saying the apportionment was unconstitutional based on the county of non-citizens, but that went nowhere, appropriately so. there's some giving and taking a way, and we can profit from blood on the highway in this area. we'll see what happens with the west virginia case. why don't i introduce the next one? >> [inaudible] yeah? >> one thing before you do that, in the autobiography, chief

justice -- the most important opinions he wrote because, as he said in the autobiography, henceforth, this ensures that the public interest and not special interests are in charge of the elections which is one of the predictions that's up there with duey beats truman. [laughter] the fall, but i think he thought at nate eluded to, one person, one vote would be a real constraint on hijacking of the political process. >> both race claims and the renaud claim, i think the history here 1 -- is interesting and one of the lines in the renaud case is that

it was going to be just open season, each redistricting cycle, an unending flow of claims. that didn't happen in the twown round in -- 2000 round in part because they didn't say things in the 2000 round that they said in the 1990s round, and people figured out ways to try to not make race look like a factor, and the supreme court backed off from the ledge at the end of the 1990's redistricting cycle. looking at this cycle, if anything, correct me if you disagree, pam, it seems like intentional racial discrimination claims are coming up being more prief lent, and -- prevalent, and shaw claims, none that are terribly prominent, but we're back to classic mobile versus -- [inaudible] claims coming out of different states. >> i think that's right. i don't think there are going to be a lot of shaw claims this

time around, and the case of 2001, the kind of end of the review of 1990 redistricting and fair to say the 1990 census came out, began redistricting, went to the supreme court early on where the supreme court affirmed the dismissas of the complaint and we'll talk later about gerrymandering, and then shaw versus renaud, back to the supreme court again, back to the supreme court the third time, and finally in april of 2001, just as the census numbers from the 2011 census were handed to the states, the supreme court signed off on the 1990 round of redistricting. the result of that is that most of the there's districting there

already, and therefore, you can always maintain those districts as preservation of existing districts or protection of incumbents, and shaw claims there's very few shaw claims involving majority black districts accepting districts that the black population is decreasing so much that you have to really struggle to continue to have one person, one vote keeping the dricts in place. the other thing is because of the political realignment and where political -- they are not being gerrymandering, but against la tee know populations rather than attempts to draw districts where there's not enough latino voters to effectively create a district, and i think you're absolutely right that almost all of the intentional racial discrimination claims this time

around are going to be claims by minority voters opposing districting rather than by non-minority voters claiming race playeded too much a role in the process. >> something that the students don't always appreciate, and i'll pump the website we've done, drawcongress.org, we did maps for the whole u.s.. >> not part of hang and -- [inaudible] [laughter] >> then it should have been craft congress. it's not that hard to draw the districts much of the time, you know, and a lot of what the disfigurement in the early days was the push for different considerations at once like incumbency considerations, partisan considerations so then you end up with districts. it's also the case talking about

the african-american districts not only because of incumbency but because of other factors that a lot heavily packed districts are not as necessary in a lot of these areas, and as you said, sometimes you can't draw them because of the relative decline of the black population in particular areas. when i say "relative" i mean not keeping up with the pace of the relative latinos and in some areas white, that you just can't draw these african-american districts. there's some out there, brown's district in florida, that's a sight to behold and a few others here and there, but then you look at the white districts, the harlem district and south of us goes all the way from the upper west side of manhattan all the way down the brooklyn bridge, into parts of brooklyn, goes until it ends in koney island;

right? known as the -- you know, funny shapes happen all over the place and happen for many reasons and compactness is often -- i've drawn districts when i drew the plan for georgia, i had a mice district that justice o'connor would love meaning you had to go outside the district, and so shapes can be desheaving. in this redistricting cycle and also where, there's racial discriminations coming out. justice kennedy did decide there's authentic gerrymandering? >> yeah, this is the interesting thing. the last time the supreme court looked at the issue in depth was a case from the 2000 round of redistricting in pennsylvania where the republicans were in control, and although the state

lost losing three seats, 21 to 18, they managed to have all democrats and try to get additional seats to the republicans, and some got indicted, i think it was, and so they didn't quite succeed in as many seats as they hoped for, and the supreme court split into three groups. four of the justices, one by justice scalia thought that although political jerri mappedderring might go against the constitution, and it's not as if any of the accessive political gerrymandering is constitutionally accepted, but four of the justices led by justice scalia thought claims of gerrymandering is that the remedy for political jerri mappedderring is to quote the line of justice franklin, to sere the conscious of the people's representatives to persuade congress to deal with

the problem of excessive political gerrymandering. you know, i think it unlikely that the people's representatives are capable of having their consciousness sered in that way, but the justices would have left the question of gerrymandering and how to enforce prohibitions entirely to the political process. four other justices thought that political gerrymandering claims and there is a way and manageable standards for resolving them, but they split three ways on figuring out what the well developed manageable figure would be. in the middle, no surprise to people who watch the court, is justice kennedy, who said one has the feeling lines were crossed here, and so he didn't want to hold the gerrymandering, but on the other hand, he said he had not yet seen a standard to allow courts to step in and decide political gerrymandering

claims, but he didn't want to rule out the possibility that there might be some standard that someone would come up with in the future, and so that means that people still have the incentive to file political gerrymandering cases in the hopes they can come up with a standard that justice ken kennedy can find sufficient for judges to intervene and then have been violated in their particular cases. >> i'll add one thing. he says look in the first amendment, maybe there's constraint on political gerrymandering because political parties are associations and that discriminates against belief. >> [inaudible] >> that reminds me of bad law school exam answers where people say if only i could find that part in the constitution, you know, and i'll remedy this part of the ambiguity in the court's decisions, and so go look in the first amendment, see if you can solve the problem, manageability

and gerrymanders, and then you get the attention of justice kennedy. >> they tried to come up with various quantitative measures. one person, one vote is a very tempting measure, what justice stewart referred to as 6th grade math. they tried to do first amendment based arguments, but what really i think happened, and i think the supreme court does enforce constraints on excessive partisanship is nate eluded to the supreme court's summary of cox against larry and the supreme court although we held in the class that population deviations of less than 10% are not a violation of one person, one vote, we're going to affirm a district court from striking down a 9.9% population deviation on the grounds that the only thing that explained that was imdumb bent partisanship, and

there's the voting rights cases explained in part of the supreme court using the voters act as a tool for limenting the amount of partisan gerrymandering because -- and this goes back to the shaw case -- what really happened in the shaw case is the supreme court essentially saw districts oddly shaped, not for primarily racially relevant reasons, but because the democrats in control of the process at the time drew those districts with the intent of also moving a number of minority voters into white democratic incumbents to serve as what i refer to as a mirror extend, a hamburger helper because you don't have enough meat in the district, you have to get some from someplace else, and so there are constraints on

political gerrymandering, but what do they use as the constraint this time around? i think that's pretty much it giving you a sense of the constitutional constraint. you can't take race into account too much to help minorities or really at all to hurt minorities. you have to comply with one person, one vote in a form or to the like. turning to the statutory ones to get off the table quickly, and that is the requirement for congressional elections that elections be conducted for single member districts. that is a purely statutory requirement. it's one of the things that separates the united states from most other advanced democracies which elect their national legislation in part. i think there's 0% chance of that happening, and i think the single member district has is it

requires and puts a lot of pressure on courts to draw plans if leg tores can't -- log tores can't. indeed in 1964 and 1966, i believe, alabama ran their primaries this way, that if you can't draw a new plan that complies in the constitution and put in place in time, all the congressional districts are legislated at large, but because of this statute, the courts don't do that. courts will join an existing plan because it violates one person, one vote, and if there's not a new plan, they draw a plan themselves for congressional districts, and i think that's probably the major importance of that. you want to -- >> section five of the voting rights act. let's talk about it while it's still around. >> it will be around until 2027. [laughter] then it will be renewed. >> there are now, i think, four

or five going through the court. we had a case -- >> say what section five is. >> voting rights act in some parts of the country and not others based on various criteria whether in 1964 these jurisdictions had literacy tests or a tester device and had vet voter turnout between # 50%. it was reversed engineered to target areas with minorities from 1964-1972. parts of california are covered, but most of the areas covered in full are in the south, and so there's a series of cases going through the court, one that the supreme court called the mud case -- >> northwest austin municipal utility district number one.

>> came through now, i guess, four years ago, and the court cast some serious or showed its concern to the constitutionality of the coverage formula of the section five of the voters right act and it's challenging and there's cities in north carolina or plaintiffs in north carolina sheby county alabama, and coming up in texas to the constitutionality of section five. we'll see if the court takes that op. that would be a pretty major decision. i mean, they'll take it on, but the question is whether they take a scalper or cleaver in striking down section five, and that's cast a shadow on the redistricting process that the supreme court will eventually rule section 5 unconstitutional, and in the most recent texas

case, they reiterated their concerns with section 5, and at the same time, we have those cases hanging out there, we can talk more about them, we have a new standard for section five of the voter act passed in 2006, and the voting rights act reauthorization amendments of 2006 said that the department of justice, which is charged with reviewing voting laws by the jurisdictions or the dc district court when it reviewed voting laws, must make sure that they don't have any discriminatory purpose and that they do not have any discriminatory effect retrodepressive effect, which is they don't diminish the abilities of the minorities to legislate their preferred candidates of choice, and so now the question facing the court in the texas case, facing the justice department, for example, in their preclearance denial of the voter id law in south

carolina, and well, what kind of redistricting plans make minorities worse off diminishing the ability of minority groups to elect their preferred candidates of choice. those words inserted in the statute were overturning an earlier court case that said jurisdictions were allowed to tradeoff districts that would elect the minority preferred candidates against those where minorities have influence over the election, and so by moving towards the ability to elect the standard tries to bring back what preexisted the supreme court decision. the long and short of it is, you know, there's a lot of, i won't say controversy, but there's disagreement among partsons on what the standard means and how they behave. doj has actually not interposed injections for a denial of

preclearance to redistricting plan other than in two very small cases, one who in louisiana, they are, participating, of course, in the texas redistricting mitigation going on in dc, and so we have a sense of how they interpret the provision from that, and there's several states opting not to go the doj route this time around and going instead of litigating the section 5 voting cases in the dc district court, which then may lead to supreme court review. we have besides the three examples, south carolina, and the two redistricting cases, there's also this case out of the city of kingston, north carolina, challenging the constitutionality of section five where the department of justice denied preclearance of a move to non-partson elections there, and so i think those

three objections or four objections with south carolina plus texas are the only indications as to what the new section means, and a lot of the cases, texas is an example of it as well as the two redistricting situations i mentioned, make the argument there's a discriminatory purpose that is underlying these voting laws or these redistricting controversies. >> yeah, and so i think there's, you know, obviously question of the constitutionality of the section five. we'll get back to the supreme court sometime in the next term or so at the very latest. in the meantime, it's clear that section 5 has been working, that is there has been very little retrogression, and the places with retrogression, they are

mitigating the state legislative plans. this is one of the areas that i think is difficult to get a true handle on which is how do you know that a statute designed to detour or prevent something is working? they say, they are not objecting much, that's a sign the voting rights act is not needed, but, of course, that's like saying we have a law against murder, we don't need it anymore because fewer people are being killed. it may well be the presence of the law is something that detours or prevents the behavior. moreover, the voting rights agent now is so institutionalized in a lot of places that is -- it takes jurisdictions off the hook of having tough conversations because they say, well, doj will never clear this if we do it this way. rather than talking about it would be the wrong thing to do, they say doj won't pre-clear, and we can't do it providing political cover to jurisdictions

to simply do what i think is the right thing. i agree with nate that the real question, i think, when the section 5 goes back to the supreme court is not going to be upper down is the whole thing unconstitutional because i think it not super likely that the supreme court wants to issue the kind of opinion that will lead to popular press coverage that the supreme court strikes down crown jewel of second reconstruction, and so as opposed to supreme court now what you see is narrowing constructions of the agent, hence congress' attempt in the 2006 act to override the supreme court's decision about what discriminatory purpose means over override decisions, and you get that back and forth, and i think there's an example of that where the court invented a larger bailout provision than congress would have provided, but i'm not sure there really is

a consensus on the supreme court that the voting rights act is unnecessary, and, indeed, the decision of people who are losing purpose-based challenges, objections, to take those up as the constitutional objections is a very bad tactic on the part of those of the voting rights agent because the ideal case would be a totally blameless jurisdiction saying we don't understand why we have to do this. they tried to do that in the mud case. it was premature, and now there's shelby coupe in alabama with objections, and there's objections to what subdivisions have done. they have teaks which they saw evidence of purposeful racial discrimination, and that's an interesting tactic to say law is no longer necessary, that people really the best target of law going up there saying look over there, there's somebody blameless out there.

it will be interesting to see where that goes. >> one other thing which is that in many ways the voting rights act could be the greatest beneficiary of the citizens united decision. the blow back from citizens united may make the court more timid to come with a meat cleaver to the voting rights act in the short term. you know, you get narrowing constructions, i think, for sure if this case out of the city of kingston goes to the supreme court, they'll find a way to say that that was the doj objection there was wrong, but you can do that in any number of ways by trying to limit what the statutory language that repairs georgia versus ashcroft. move to section two? this prevents against racial prejudice every in the country, not just racial jurisdictions. there were two major cases,

bartlett against strickland, and lou versus perry. in general, the standard under section # -- two was if you're a large and compact minority community with a history of discrimination and conditions of racially polarized voting, that you were going to be entitled to a majority-minority district. bartlett versus strickland says, yes, it has to be over 50%. unfortunately, they didn't say 50% over what. the denominator question i said before, the voting age population, the 9th circuit and 11 circuit has circuits with the citizenship issue saying looking at the population that causes challenges because we don't have the same citizen data at -- you know, not on the census forum,

and you have to use survey data. bartlett says it's over 50% leaving open two issues. the first is that one. the other is about minority coalition districts, and so can you group together african-americans and hispanics in certain areas in order to sur mount the 50% threshold? there's a cryptic session saying the district court's decision if it thought you can do that, they might not have understood what section 2 is about, but there's, you know, if they wanted to be clear, they could have been, and they were not in that case. >> i think just to go with that, the supreme court was so focused on the word "koalation" that they didn't focus on coalition of what. the claim was a coalition between black and white voters would be an effective voting

majority in the district. in the texas case it was a coalition between black and latino voters, and i think they didn't focus quite as much on that as they might have in trying to figure out whether minority coalition districts are something people bring a claim on because that's something that in the areas where there's large cohesive minority communities made up of more than one racial or ethnic minority, bringing claims since the 1980s as opposed to the bartlett strickland claim which was more of a post-2000 claim. >> it's confusing because justice kennedy renamed all the claims in bartlett versus strickland. what we thought were coalition districts are now crossovers, and then there's minority districts, and so they confused us and they confused themselves. if that's what that is

underlying in texas, i see where they are coming from. lou versus perry, that nina there in the back little gaited -- litigated, so this is the rare section two victory at the supreme court where the supreme court says that the dilution of the la tee know vote in south texas by shaving off a district on the verge of electing a latino candidate of choice, you cannot compensate for that shaving off of a district by drawing a district that stretches from the mexico border all the way to austin which is 5 culturally very diverse district and that the latino populations there did not have an entitlement to district two of the voting rights agent. really this case, the way i read it, is justice kennedy believes a little bit in shaw versus

renaud, and he's trying to merge it into his concerns under section two of the voting rights act, but part of the interesting inquiry that comes out of this is it's not just geographically compacting minorities that have claims and entitlements under section two, but do you have to add something to the notion of compactness? >> the question in the section two case is in addition to the geographic republicans and the like is going to be how we think about racial block voting. justice kennedy's very much an individualist opposed to a group-oriented justice, and i think part of what upset him so much with perry was the idea that you had a really quite vibrant political equalized mexican-american community on the verge of legislating -- electing a congressman saying

you don't get anything and we'll defend that by drawing a district someplace else. even if that district was okay, i don't know that justice kennedy would have upheld that. i think he was offended by the purposeful discrimination. this goes back to the voting rights act. it allows courts to strike down plans they believe to be unfair without calling anybody an outright racist whereas the constitution requires an act of washington showing that a person acted with discriminatory purpose. this allowedded him without saying, you know, the legislature of texas were a bunch of racists here to say the issue was not fair. the other issue is how you measure racial block voting and what counts as significant racial block voting. as we move and over the past 50 years, this has been clear, as we move into a world in which partisan affiliation and racial identity or ethnic identity r

closely linked in some important ways. in the south, the question of how you decide is it racial or political discrimination comes up again. that is, you know, the state of texas often claims in these cases that they are not screwing over latinos because they are latinos but because they are democrats and they are perfectly happy to have latino republicans elected. how can you say it's racial discrimination? well, that raises important issues that i think the supreme court is going to confronted. they con fronted them several times already with correlation or you have to show some level of causation in which we inquire into the motives of the individual voters. that's a set of issues that could be back in the courts this time around. >> also the thing about bartlett and how it's relevant to that. in justice kennedy's opinion, he has this victim suggesting that, well, 25% white crossover voting

might be enough to immunize section two claims, and most people thought that was a low enough level of the voting that a section two claim would be viable, but because you are able to get 25% crossover in certain areas, but a lot of it, in my experience, is you really can't look at states as whole. the areas of racial polarization will be places for a 40% high -- 40% minority district that perform for the african-american community and other places where you have to be well over 50% in order for it to be a performing district. >> the interesting thing about what courts look at and see as significant crossover voting is if i were to tell you in a particular election, one candidate, 75-25, nobody would say a significant number of voters voted for the losing candidate; right? talk about land slides in the

united states, usually we talk about 60-40; right? you know, reagan's land slide got 61% of the vote, 58% of the vote is thought of as a landslide. the courts talk about having 20 -- 25% willing to vote, it's a lot of people. it's a lot relative to zero, but not to what we think of as a significant attraction of votes. so now gets go to state law. >> that's where things get interesting. it's all interesting up until now; right? >> now it's going to be fascinating. [laughter] >> yeah. well, just because, you know, you have similar provisions in different states that mean completely different things depending on the supreme courts of the states and how they interpret things like compactness or political subdivision requirement. i drew a plan for maryland after

they struck down the state's plan because it didn't show due regard for political subdivision lines and other states have rigid pronouncements about obeying coupe and city lines, and so different states, and i think i was just counting, missouri, pennsylvania, and idaho have all had courts striking down the plans on political subdivision grounds, just in the last month. there's other criteria and arizona has a commission with a requirement that some of the districts be competitive. they were in litigation for six years in the 2000 round because of that. others have, you know, certain types of community of interest criterias, and a lot of it, you know, if you're aggrieved by the redistricting plans for partisan reasons or otherwise, well, you throw all of that at the wall and see what sticks, and there's been some success in the state courts on those different grounds.