fan ro. >>t: tal ls tachaur committee is looking at the internet ses tax, particularly if it comes to downloading muc, correct? >> gue: we, the inter toteleg tcrs state lines, and can that is another whole jurisdictional area for the house judiciary. basically, state compas and e rioth ats risio ts ss fe inht enomi times attempting to collect not just sales taxes, but other types of taxes from best an'sstecri inetul dng rtnu uc through your state and if you passix or seven

truckses and they say, well, you've got to file a corporate income tax ret s ive giioatemto earili twe nro ist cer ot ctiti, era al businesses that are reluctant to do business in other states because of the complexity of when they might get hit by another state's contact. oug to abltoel if wtosi, s ler ss if d hne u't d i ink that would benefit not only businesses expanding and creating jobs, but it also woulhelp states that waste a of acathulnorces tryin to g deat cmses inheir state which would be fairly de minimis, certain other contacts would allow them to impose these taxes. but if is lesshan that, we ideiman woab t h t

ou tho a doevel ain is that sufficient contact with a state to allow them to require you to file a corporate income tax return? we soulderinopdefinitely n. g rawhg r s ant a business and operate it there for a period of time, certainly the state should be able to iose their state and local tas on that siness. h ae ou t prta booteis aiediy omee o llal op ahe ineso -cha of the congressional internet congress. and juliana grunewald, tech and telecom staff write for "the nationalur"

gathered today in washington for the annual meeting of the national > geunieryl

ertsdn on stk' arpr uun upholding the federal health care law. the decision stated that the mandate requiring most americans to buy health insurance is constitutial based on rep t vae thalimones r iold lmdcd ndfrtthcse t cmd nsi as specified in law. this runs about an hour and 40 minutes.

>> i'm susanentzer anhahevleffs denge inhe in wrs dml stockdale, the famous vice presidential candidate, who are we and why are we here. we re here ovoly because a rymns is ety ture imat for the legal community for constitutional law, and of cour for the health care system and health care delivery overall. thetoukden o d sel o ings pro and con no matter what side you are on. among them nine justices and h prae opn u o meg g tosls,

e lenty to make both sides happy or apoplectic depending on what section of th orryhieste eeedi accused of heroism on the one side and other trees and on the other, not to mention sophtry which also he was accused of in onoft nion. dousk a,to yu en de snt t a o yourselves when have you ever read one group of justices accusing another of, quote, judicial overreaching on e other han tmni, ineorend his office. that is all the language we typically read in the opinion so th afrdablee h

ed heaat ri net h noer elections. meanwhile given the strong language that was by the dissenting justices and ome by the chiefjsi hlw th te overt ot noig ea us ae calls attack to veto a tax i which it can. in the consequee asked him put it th a arog webl slei ghecin klee t eer en ott eat broccoli. [lauter] we now move on to discuss a little bit more l i te t t siea g frdnt fhe nio laws

but also all the otherconcerns mentioned, and we have a very distguished panel as i say that will ade tat ay. po ap bfimis, tevodll dan'lno some q&a and lively conversation. what we will hear from firsti louis michael seiman of cotituonal a gn ivty ah cotualdisnc cotualws. we will hear next from david rifkin jr. a partner that was the lead for he 26 stat th le tontiony heore e c. prsst george washington university school of public health service's she also directed the legislative to acting as president clinton's ralfrracn e

afsheae h vingrff a ge university and former director of the medicaid program and counseto the u.s. house of representativessubcommittee on thay nirdhe environme d fr r boce lo hipaa craddock myth and adviser to president obama's 2008 campaign and transition team. o o mike seidman.turn ings >> thank you, susan and think youfor coming my prediction about the outcom f thease cmt r go oe ric od business it is barely possible the court

would uphold the mandate. if you had wanted to bt that they would do so with the chi jue in thcdi teo h axu ndwohayu 00ddd ooan i was yesterday. so the interesting question the morning after is how does his hpen? ats jnetik mompntes e wo m,lard miiojbe c the deciding vote on the liberal siden both ases. so i want to start by raising dis heitieto qckly apjuirbrtshi icrbrtstloed e eamtr,tds he constitution's and concluded that this is what he polen usnt

vivknd abu motbui hnk e ul e that roberts cod have easily decided that the mandate was enforced by a penalty rather than thetax, and anklsometegms s t cmcee th pninson ss egtets here's another possibility. john roberts has had a mid life conversion. [laughter] perhaps he woke p one morng d del em ur mshweig lo exatte what are? let's take a moment to imagine how the world looked to john roberts at 10 a.m. yesterday thprcues mre lata t pidi ecnerfideei e nstitution is declining fairly sharply, and there is no less than a majority of

americans who have confidence. almost three-quarters of all erstntate u rata law to decide cases. that i reinforced and that the most important cases republican appointed justices are almos always oosind moic pod icn ohr binh gond may have handed it to write the commit from ne citizens united and the case upholding the voter i.d. h sic atwe o prenamti atang ncerro bech. and the spectacle a couple years ago of the president attacking the court as the justices sat listening in the well o the hous the ahae deealoaiv

ctan vatt196 tirts act, the centerpiece of the civil rights revolution, by probably 5-for votes among te familiar fawi hs se fteicln acin tul flw th than according to politics, roberts couldn't be happy to presoak of the first in devotees in a few simple pce of the president's domestic whoheae rd.e the e . erreta rassh rtht have wanted to invalidate the act. the commercelause argument against the mandate has become a centl finienin nstiel a heul wt ced rti tisedcegen l poilof bsiareting federal soci legislation going forward. he would not want to reject that

either. buther eas as t ld atee ati ppr t r isitelle ut p strike down the mandate committed to take the repeal of the table and leave the republicans in the provision f ndtheaft ul rvio poladreynru n s npy re, pthink the health care bill is unlikely to unravel without any help from the cot. owichy not let obama stew inhis astt,nttito iejustice roberts manages to cast the vote, the deciding vote in establishing the commerce caarnt s aesent and te sndin binscmn loteelcg bm

ree nte mi class. a pretty good day of work. but justice roberts opinion and sebeliuspolitical? thstotis th esome itly ilpeg ctn ines ieusce roberts is one of the best politicians of our time gh lee e h hs in wolto ut not a bad morning overall. let me talk to you a little bit on what see for long-term implications over th decision, jue w.akaotci a i'm basically quite happy with what i consider to be the long-termjurisprudential opinion that ther is presiding

-sngttith mehiou ov e tndhly and in all argument op-eds have been embraced almost prectly welddie hi ghdwowr b iry'd ge wh at. folks have been defending the individual mandate under the fledgling coerce claused cones etey ng ahe ayon l ela in the district court level pressed ver little pu aemurt ie. wveakogeat 'st en. ita n.

i would tell you from long-term -- by the way, one of the things i want to emphasi from me this case have seven about health res aothe no thi jceb justice kennedy and lopez the most distt of the constitutional some. as we al know fderal overt xriso, reenfgnal b iraifens si sfhns from amassing all the power to protect individual liberty etc., etc.. that is my view of the right potion br,cme le meha e i yeofen pr cusgus for a little tricky and i remember the numerous debates peoplenot even in academe that the brief dengat ewudocx

near i esanin d at's the significnce of justice scalia's's language. the fact that the court has laid out th oit eftlea hta dedj -ti ht the calvo sweeping calls that implement the enumerated powers. that it's not an independent crown of authority. it does not allwyuhe atthsest nstimti m obs ino utii not any less exciting that the five justices have increased it. it's a great day for the necessary and proper clause. ndg csne ofctewas l tthis ti out there that there are some

restrictions on the spending power. again come to the proposition that the federal government has teeuetp s ny scer, n lottepown nty ofr litations on the spending power? but gratified coming enormously gratified that the court actually spelled it out. heercal paraon r and hn rt gd , by on spending calls which i give robert considerable credit, whais unfortunate about the case of these more tacticalan againlaid e vas uly apredtpe despite being a pacticing lawyer wall professor on this panel i would ascribeg thurdoefa

ti acuns bu whether it's been to help romney were president obama. the that is too cynical for me. leading that aside, what bothers the most ieurl ste f pt ap wt oferih is another key part of the constitutional architecture while deforming the horizontal power because the court is not spposed to ry ut ibelsur a dendsio, calb ibudn' inatthsees f a would say the constitutional. the court rewrte first the individual mandate, and we can talk about in greter detail why 'st lid co xiowfr a nsarai i aad llit wt isoab. it clearly says it's not a tax. it's a bit jarring to

transformative good tax. disitdrcxes nthan thatthe hiic logd cont atanatsued work. but also the court rewrote the medicate section because the court said you cannot have yoneveto as eger cripnlans in new york or taking over general police power in thecset en at yan t eer t 's thad section to give states a choice. it's not fair. so it a tactical level, kind of perhap i think it isvr corsfti oone g obavry

anwudsy justice ginsberg dissent is not terribly unusual but to underore o hy m t rwthe g rm mti t you very much. y uer tty t rin m r t decision means for health reform and the ansformation of the health care system. obsl s etigtrtng p t h divo e n act, which is of course the enormous in scope and goes way beyond the issue of

covera itelf,da w t troronntof ltreichatre ssovtsth public health, bringing greater thxpureheccy and cplianct itlde de e inific t. ouhav been almost an unthinkable step to have done with the dissent wants to do in an attempt to pull thewlbc sn oin.haly be co ie t le f ek trage of newspaper articles and other ha ti wwudout thedecision ano h is

ksatldcnin w ncninue that is the question is has the law been repealed in its entirety of this decision to alyunde wayiheeaings at are retemapred rutpedwh foto reform coverage stopped. but the law has said so many things i motion and makes some instments in trnrtion iin tisesaon aslu asia rpn pes th eeof what it means to be an american bar health insurance is concerned. most of the questions of course, but med. knh tinana mca w h ecmedw sty,pe imoc turned to me and said you are toast. [laughter] jo u 1 us ryy -- it became

thoade ni. acly disagree with david vkin on his characterization of what they did. if you open up the statute books th y- oneit ttanyb h utbayuwu gr tt lf the individuals whose coverage is bject to 100% federal financing under the new ai thi e.xansi op iin spl ihe ca statute. what has changed is not that group and not the congre power to create such gil and ene epctans

regarding coverage of tht group in the case of states tat whasng s. meriofreietht e laonr w e to assuring some aspects, not all but some aspects of compliance. w d gett hs tihe d ol nithhof h think most about the coverage of health care of the poor and underserved shouldreally call the children and adults the will befit fromeexansi juikho f ota o chent hi a our referred to as were buck off children because he created them. or amnci.

wsehearid thweocrse jce ginsburg erself noted, seven justices w thoht tha wa noitoni ns to us is that it was only unconstitutional to pursue certain kinds of enforcemt me spse eg expectations on the line. so how did he do this? she did it by impong what i call 82 state olutn. on the eiaid ate,sof abtecui lsgu distinction between what the

medicaid statute requires or provides for and how those reiremts g ened hsell oth xpon stalfa mo hhetos th ces cannot do is threaten states by witholding imenatc aneisti e og d f se to convince justice breyer and justice kagan to go along with this. girgcrineroaya , tht feo he o stsoonlihew nsgrth own program meant that he could then bifurcate the enforcement provisions of mediaiand told priofmdd, eause

sosu tadt rctpvonebjtotern ra tiwaunthe act, it was possible to uphold the expansion ile the same time limiting enforcement of the provision. sot reeiti meg iwo yw toelycaa tt oio smng th tew affordable care act eligibles. it is subject to different rules having to deal with nforcement. searrdhoeuidanc rth sooferse h ut but i am convinced the 16 million poor children and adults will have their benefit precisely because of what juice ortidhr tiuscno is jay 2oe around we will have a few states that have not either iplemented

these in whole or in substantial pa sumi t parial plntn ve sitywt kw. thrb tt.en the situation facing the healthcare industry is too serious, and needless to say the tuation facing 16 million pele io eor

>>ajntod a that i think the roberts opinion does no real harm to the medicaid provions of the affordable ce act. miraizn edd fdame cot,t rt. first, no real harm. what the court struck down is an enforcement tool that no federal official has ever has or ever would use, cutting off all federal matching payments to a state who is doing too little. no one would support this action. it punishes the wrong people. it's cutting off poor people's noses to spite electors' faces -- legislators' faces. against states that underpay -- underspend or underperform. if a state overspends, then the federal government can respond

to that. they can take disallowances and refuse some portions of future matching payments to the state or even ask for a refund. um, i was in the unenviable position at one point during donations and taxes episodes of signing a letter to a governor saying, please, remit $1 billion to the federal government. [laughter] and if the state spends money on the wrong thing, the feds can do the same. if a state were to spend money on ineligible people or for uncovered services, the feds can respond and disallow funds in the future. but how do you take money back for spending too little? what do you accomplish? no administration, past or present, republican or democratic, would cut off all federal funding. is the threat useful as a bargaining tool while talking with state legislators and governors? maybe. but it's also possible for states simply to dare the feds to do something about it. and i also think, and i think following up on something sara

said, that it is unlikely that the tool will be needed to get states to take part in the new expansion under the affordable care act. the aca will pay 100% of the costs of the expansion with federal funds for the first three years and then glide down over several years to 90% for all future years. that's the highest match ever in any federal, state health insurance program. i think the easiest historical analogy here is the children's health insurance program or chip. it's clearly voluntary, and yet all states take part in it. the matching rate is higher than traditional medicaid, but it's not nearly as high as what the aca will provide for the expansion population for medicaid. i would also point you to other optional categories of eligibility, other optional benefits and services. one of the newest ones is eligibility for women who find they have breast or cervical cancer, also paid a higher

matching rate, and i believe all 50 states are in compliance with it. and then there's, also, from the other side not just the carrot, but the stick perhaps, the very counterintuitive nature, possibility that the state could end up, if it chose not to participate, with its very poorest citizens being altogether uninsured and no one else. the people under 100% of poverty are not eligible under the statute to take part in the exchanges of the affordable care act. oddly enough, the only people under 100% of poverty who are eligible are legal aliens who have been here less than five years. it will be a very strange circumstance for a state legislature or a governor to be looking at its population and say these are the only people that we choose not to cover. in addition to that, there are going to be pressures from providers of health care services in those states who were not expecting to see a whole lot of uninsured,

uncompensated care in the future. um, at least not among citizens. so i think the tool that we've lost is one that would never have been used and one that probably isn't necessary. but i would go on to say that i think the roberts characterization of past expansions and the present one in the affordable care act betrays a fundamental misconception of the medicaid program. his opinion suggests that the central feature of medicaid as it exists is the eligibility categories. whereas i, and i think most observers republican and democratic who have worked on this program, would say that the central feature of the medicaid program is people's low incomes. the existing program is not as opposed to i think the roberts characterization runs, the existing program is not to all pregnant women regardless of women, it is not to all people with disabilities regardless of

income, it is not to all children regardless of income. the common denominator among the many different eligibility categories in the existing medicaid program is low income. and consequently, adding the remaining poor people in america to this program, i think, fits exactly with the existing program. the program has been altered in many other respects also over the years; managed care versus fee for service benchmark plans, managed care versus fee for service, defined benefits versus benchmark plans that were very basic. but it has always been regarded as the same program for low income people. i don't know why chief justice roberts and others would want to get to this line of establishing an anti-coercion doctrine. i leave that to mike and david to help me understand. i worry, as i try to find the defining qualities of what makes

a program different and what makes federal spending coercive as opposed to voluntary. but i think that they've done it, created this doctrine, in a way that misunderstands -- maybe deliberately -- the past and present and future medicaid programs. thank you. [background sounds] >> thanks a lot. and thanks to susan for moderating and to our wonderful georgetown law events programmers for putting this event together. i have my own admission to make as did mike. i thought the mandate would survive because i figured based on oral arguments that justice kennedy couldn't possibly vote against it. after oral argument, kennedy

said this about americans without health insurance, the regulatory targets of the mandate. quote: they're in the market in the sense that they're creating a risk that the market must account for, unquote. and then a bit later he added, quote: the young person who is uninsured is uniquely, approximate matily very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. that's my concern in this case. closed quote. and i figured, aha, there it is. he's going to be the fifth vote in this narrow opinion that upholds the mandate or at least finds a way to punt so that the mandate is left intact. i thought it was game, set, match and i was going to bet on intrade and make lots of money until i saw you actually have to register to pay $5 a month to make use of the site, and i'm too absent-minded to unregister.

mike proposed we based a quarter on this, and based on my rationale, i think that i should now -- [laughter] um, if -- [laughter] >> okay. >> if the uninsured were, quote, in the health care market, unquote, for kennedy, using health care when risk became reality, then the mandate regulated their market activity. it didn't force them to engage in commerce, but the temptations of blockly proved too great for justice kennedy. he somehow set his concern about the creation of risk aside. in the eyes of most progressives who backed the mandate -- well, some single-payer supporters actually opposed the mandate, going so far as to file an amicus brief, they opposed it as

a giveaway to insurers -- but in the eyes of most progressives who supported the mandate, justice kennedy just didn't get it. that is, he didn't get the argument driven home by liberals and the courts and in think tank talking points, the argument that people who can afford insurance and don't buy it are free riders, even freeloaders, who burden the rest of us by saying no to health insurance, then getting emergency care that's paid for by the rest of us, and you all heard that argument made. and it's an appealing argument. and it's a really nice-sounding message about personal responsibility. but as an economic proposition it's deeply flawed. conservative opponents of the mandate identified the flaw, and in their briefs and at oral arguments drove their message home with powerful effect. only justice roberts' bit of take your pick, state craft, or did he just blink out of fear of history's judgment, or is he

trying to build street cred for radical judicial activism next year? whatever he was doing, which i guess people will argue about for the ages, saved the affordable care act. the flaw in the free rider argument obscured by the right's broccoli talking point is that it acts like a tax. it serves the same function as actual taxes in health care system like canada's and many others that provide in some form universal public coverage. it brings money into the risk pool to cover the sick. since the uninsured as a whole are healthier than most americans. the anti-mandate side brought this message to court with results that were devastating with the argument that the mandate merely regulated activity. in justice roberts' word in his opinion for the court, quote -- and this is the longest quote -- the individual mandate's regulation of the uninsured as a class is, in fact, particularly

divorced from any link to existing commercial activity. the mandate primarily effects healthy, often young adults who are less likely to need significant health care. it is precisely because these individuals as an actuarial class incur relatively low health care cost that is the mandate helps counter the effect of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect. if the individual man is targeted at a class, it is a class whose commercial inactivity at that rather than y is its defining feature. this, i suspect -- again, closed quote, end of justice roberts' words, but it's hard to argue with that proposition on economic grounds. this, i suspect, is what killed the creation of risk argument for justice kennedy. and almost killed the affordable care act. had this court been content with it last 75 years of commerce

clause jurisprudence, the free rider argument might have been enough. but for an activist court intent on rolling back three-quarters of a century of commerce clause jurisprudence, the cross-subsidies from the healthy to the sick obscured by the free rider argument were fatal. the argument over being whether at risk for illness but not buying coverage constitutes action or inaction does not have a purely logical answer. this argument is a mere place holder or veil for that classic american moral conflict between autonomy on the one side and mutual caring and public provision on the other side, and we'll now have at it over this issue in our politics. tweet by the supreme court through citizens united and the like, the most immediate consequences, though, of the -- the most immediate consequences of the court's decision is that an election will decide the fate of the affordable care act. mean while, as sara and tim

point out, implementation will proceed. but the pace will vary. tea party-dominated states will slow walk or stage their versions of a sit-down strike over creation of insurance exchanges and many other features including sara's and tim's summit, medicaid expansion. and in the coming election season, many will complain about the costs of expanding coverage to 30 million. and i'll conclude by observing this, that the cost objection is mere cover for philosophical objections to public provision for people's needs. the increased cost of covering 30 million is, perhaps, a little bit greater than our typical annual national increase if medical spending, and it's a one-shot increase. and it's, thus, much less significant in america's medical spending picture over several years or more than our rising medical costs. so the real cost problem isn't the cost of covering the people who go to sleep at night anxious

about what's going to happen if they discover a loved one has a tumor and how's that going to get paid for, the real cost problem is the long-term trajectory of our health care spending. the long-term rise in all our medical costs. our physical equivalent of global warming. a challenge that our politics has hardly begun to take up and that i hope will start paying attention to once the coming kerr enoughs over the affordable care act die away. thanks a lot. >> all right. well, we've had a terrific range of perspectives provided here this morning, and let's just briefly recap what they were. we heard from mike as we heard later from gregg that they bet wrong initially on the outcome of the law like about almost everybody else, i suspect. >> and i got a quarter out of it. >> no, he gave you the quarter.

[laughter] but you're a law partner, you don't -- [laughter] distribution. >> wealth transfer. [laughter] >> and mike went op to express the question that most -- went on to express the question that most plagues him which is why did chief justice roberts do what he did. and you heard mike's theory that this really was an absolutely brilliant political move. justice roberts being too brilliant by not just half, but certainly by three-quarters in that he was able to cast the vote that saved the mandate while still framing the president as the person who lied about not raising taxes on the middle class because the mandate is a tax on the middle class. so that was the, his reason for designating chief justice roberts as one of the best politicians of all time. we heard from david that the decision, obviously, he's not

happy with the 5-4 final vote, but there was much in it to like for those who brought the suits in the first place. first of all, the commerce clause leeway that would have been granted had the court decided that the commerce clause did, in fact, grant the leeway for the individual mandate, that ship, as he says, has now sunk. that is over, that discussion is over. and he went on the to say that from his perspective some of what in effect the court said overall on its interpretation of the spending clause and of the necessary and proper clause took the interpretation and the direction that he would have approved of. david said that this case has never been about health care which is a proposition i'd like to come back to later and ask the rest of you what you think about that because although, obviously, it was decided on constitutional grounds, i think the opinion suggests it was plenty about health care and

health policy. but we can revisit that. and in the end as you heard david's ultimate concern that the problem is that while the court very clearly spelled out some of the structures that i've just talked about or at least made it clear that the commerce clause was not going to give birth to the individual mandate, that he did think that there was a overall problem with the congress having -- excuse me, the court having rewritten the medicaid statute in particular and also having gone through this verbal whatever, twisting and turning, to decide that something was, on the one hand, a tax but then not a tax. from sara we heard overall her feeling that the court happily, in her view, represented a green light to the entire aca.

but moving to the medicaid portion of the decisions, on the one hand as she pointed out it looks as if the court did, in fact, give a clear green light to the medicaid expansion, but monkeyed around with the enforcement standards and the enforcement remedies that the congress could pursue if, in fact, courts elected or -- excuse me -- states elected not to go ahead with the medicaid expansion. and so that by the combination of, first of all, designating medicaid or the expansion population as a new program as opposed to just a change in the existing program as she put it, this created a kind of a two-state solution that will be, has created something not quite like a state option now to expand medicaid, but certainly a state option -- it's not legally a state option, at least gives the states now the choice of not

expanding the program and, therefore, not being subject to the penalties of losing all their medicaid funding. and as she concluded, you heard, it leaves her believing there probably will be a few states as of january 2014 that will have decided not to expand medicaid, but that the vast majority will, nonetheless, go along. you heard from tim westmoreland similarly a feeling that the court went down a very troubling direction in the case of what it said about medicaid and that, essentially, the roberts' opinion mischaracterized the program and mischaracterized it from the standpoint of both characterizing the expansion as a new and different program and also fundamentally mischaracterizing it in the sense that the opinion seemed to read medicaid as being a question of eligibility standards all put together as opposed to a defining, overall standard of low income.

so your low income pregnant woman, you're a low income blind person, you're a low income elderly, disabled individual, but the operative standard is that you're low income. and that by creating this or having this different understanding, in effect, as you heard from tim it seems to suggest that the court -- or at least justice roberts -- fundamentally misunderstood, in tim's words, the past, the present and the future of the medicaid program. and then finally, as you just heard, we heard from gregg, he also had made an accurate prediction that, and having believed that it was going to be justice kennedy who would come around and make it a majority to uphold the affordable care act. and then going on to conclude that the, essentially, the court upheld the understanding that the penalty was not, in effect,

i guess, gregg, literally you put it it was not there to regulate market activity. it was really intended to do something much broader than that. and then gregg closing by making the observation that the real problem here is the -- underlying the entire health care is the long-term rate of health spending and that to the degree that the states will complain about cost inherent in, for example, in medicaid expansion and even after, even -- not withstanding the fact that the federal government is going to pick up more or the bulk of the cost of the expansion, that the states will still be left with some of the tab, gregg indicating that that cost complaint is really coffer for not wanting to cover that population in the first place. so with that we have, as i say, a diversity of perspectives here to talk about. let's go back to that fundamental point that david made, that this court case was never about health care all along.

i'd like to hear how all the rest of you feel about that. sara, let's start with you. >> um, you know, at one level i completely agree that there might have been certain presenting issues that would have brought to a head the same kinds of profound constitutional questions that arose in this case. on the other hand, i'm not sure that anything other than health care would have led quite to such a blockbuster law. the complexities of markets, when are you in a market, when are you not in a market, you know, when do we not want to call something a tax when it really is a tax. health care has always had this unique ability to galvanize law making and to raise passions in ways that i think are quite

unique. i mean, we certainly saw a version of that with the financial regulation law. but that law was really much more about regulating an industry. here you can see how in health care any solution to the vast problems we face in the united states requires pulling sort of a whole bunch of levers at the same time; state/federal relationships, individuals' relationships to the government, industries' relationship to the government, of course, and to individuals. and so while the case technically, um, might be perceived as sort of being health care as a by-product, on the other hand, i'm not sure that any other major social issue facing the united states would have brought us to this point. >> [inaudible] >> just want to say very briefly that at one level every case is about the facts and the circumstances in that case. but as lawyers, we also know that every case is about more than that.

so to be precise, yes, it was about health care. what i was trying to say to people like myself and, i believe, many people involved in the case, it was about constitutional principles. and let me say this: sara is right as a matter of politics and policy health care provided a uniquely suggestible target for these types of unconstitutional strictures being enacted. but on the other hand, let's consider the fact that for two-and-a-half years the government -- just by being represented by superb lawyers from day one in district court to the solicitor general in the supreme court -- has not been able to answer a single question. where's the limiting principle? if you can apply the commerce clause by itself or as aided by the necessary and proper clause in this way, what couldn't you do? it's precisely, sara, the failure to answer this question that made this so compelling about being about the constitution so that's -- and, again, we're not supposed to

lose sight of the social and policy equities. but if we take the law seriously, it cannot be primarily about that. it has to be about the law. >> tim and then mike. >> um, i would say that i can't answer the question because it's like trying to dissect how many hurricanes there are in a perfect storm. i would say that health care is, is probably the biggest of the hurricanes because it's been such a central debate since the new deal, an unachieved ambition for 80 years. and also the way that it makes us as a nation stand out different from all the other industrial nations, that it's something that we've always been exceptionally bad at. so i think it just becomes the biggest of storms in a perfect storm. >> mike? >> i'd say, also, i can't answer the question, but because it's really too early to tell. certainly, david's hope and i think chief justice roberts'

hope is that this will be the opening wedge in a redefinition of our commerce clause jurisprudence and more generally in our willingness to accept the modern welfare state. um, but there are -- and that might be right. but there are some reasons to doubt that it will be right. for one thing, despite his claim to the contrary, roberts, his entire discussion of the commerce clause wasn't necessarily for the -- >> is what? >> is dicta. that's not necessarily for the holding. another thing, i won't go into the detail here, but the test that he articulates both with regard to the commerce clause and with regard to the spending clause are just completely empty and could be utilized to achieve any result in any case. >> say more about that because you made that comment in your opening remarks. what about it is empty?

>> for example, with regard to the spending clause, we have to distinguish whether this is an expansion of the existing program or a new program. this is what the great law professor felix cohn called transcendental nonsense. [laughter] there's no such thing as that difference. so it's somehow extending the program to pregnant women is an expansion of the program, but extending it to people at 133% of the poverty line is an existing program. i mean, you can just do anything you want with a test like that. um, also it's worth noting that, um, this was a 5-4 decision, and whether in the end, i think, whether or not david is right will depend on, um, the next election and on who the next justices are and on whether, each if obama wins the next election, he can possibly get

anybody confirmed by the senate of the united states. and i view all those things as open questions. >> gregg? >> i just want to make one observation about the relationship between this case and health care. where health care played a unique role in terms of constitutional law is the unique complexity of the cost subsidization patterns and the institutional arrangements in health care. a complexity which dare i say has persistently eluded the media for the most part and made it possible for the various sides -- and i think that there's equal opportunity offenders here across the political spectrum -- the various sides to tell partial stories both in the courts and in the media. about how these subsidies work and institutional arrangements work for the purpose of making their points. and i think, dare i say this, the leading constitutional lawyers of our time had a real

problem grappling with this. this was most dramatically apart when -- apparent when general verrilli's glass clipged, and he had -- clinked, and he had problems with the ice and problems getting out some of the arguments about cross-subsidies. but i think it was apparent also in the way that justice kennedy metabolized and gagged on the arguments about cross-subsidies. and the system was, basically, not able to swallow and process health care. because it's so complicated. >> david. >> um, perhaps in anticipation of professor seidman's observation, the chief justice was careful enough on page 44 of his opinion to state as follows: for statute reason one naturally has a command to buy insurance as a tax, and i would uphold it as allowed. it is only because the commerce clause does not authorize such a command that it is necessary to

reach the taxing power question. it is only because we have a duty to save it if fairly possible, but section 5008 can be interpreted as a tax. while deciding the commerce clause question, i would find no bases to adopt such a -- [inaudible] under the standard accepted rules of parsing opinions, the view of a decisive vote, which is roberts', is the essence of a holding. but that's not an interesting question. [laughter] that's ridiculous. [laughter] >> no. >> ridiculous, though not transcendental in this case. >> but that's not an interesting question. to me, an interesting question is on the medicaid stuff because i think my colleagues are missing one fundamental point. it's not the nature in a mechanical sense of a shift you go from pregnant women to nonpregnant women. if you take state sovereignty seriously, it is a simple matter, ladies and gentlemen, of dollars and cents. if you start with the

cooperative program like medicaid that is affordable for states in the long run, although taking them down the path of greece, it is one thing. if you enlarge the program, however, you structure it as bringing in new classes of beneficiaries, or you enlarge the size of benefits. if you do it in a way that threatens to bankrupt the states given the fiscal realities, it is that part that is impermissible unless you're prepared to throw state sovereignty out the window. one final point, how does it do that? we heard from gregg about the 100% contribution. that's not true for two reasons. first of all, it's utterly nonbinding on future congresses. second, even if that's true, for the first time this medicaid requires states to provide it versus just paying for it. but after two years of doing that having talk today many state officials who administer these programs, i was told that

what would happen is to insure the sufficient density of the provider network that can be done for lawsuits, the states would have to spend lots and lots of their money. because given the continued cutbacks in reimbursement rates, the positions are going to -- the physicians are going to flee from the business of providing medicaid services. so the states are literally going to be popularize. and i have seen projections in terms of seven or eight or nine years even with the so-called 100% reimbursement. that would squeeze out state spending on everything; roads, prisons. >> okay, this is -- we need to turn to our, a couple of our medicaid experts here to respond to that. >> so let me start, um, tim and i gave each other the high sign, so i'll start, and then he'll jump in. [laughter] so a couple of issues now on the table. one is, um, the impact of the expansion. the second is the sort of

multiplier effect, potentially, of what's known as the prompt access standard. the third is what significance do we draw overall from the decision. so just to backtrack, putting aside the strange and wondrous solution that the chief justice imposed on medicaid in order to give the litigants the breathing room they wanted without in any way sacrificing the money, the expansion, the power of congress to enact an expansion, as i said, if you open up the statute today, what you see is that there's, you know, one program, that this is what we would have called a new mandatory categorically-needy eligibility grouping consisting of people described in that part of the statute. and, of course, that's what made the whole issue so stunning to justices ginsburg and sotomayor that, you know, the question is, well, wait a minute. if you look at the statute, it's

one piece. and as justice ginsburg pointed out, it would have been crazy to repeal the whole medicaid statute in order to just enact a new amendment, and congress has amended the medicaid statute, i don't know, imnumerable times other the past almost 50 years including whole new eligibility groupings. and tim is right, they're all a matter of degree or sort of dimensions of poverty. in the beginning we only recognized a few dimensions of poverty, we've recognized more dimensions of poverty and impoverishment for health care purposes. so it's one piece, and i view the sort of the implications for the coercion doctrine -- and i must admit i'm not a constitutional theorist on coercion -- but i look at it as a practical lawyer who deals in health care law, and i say what are you talking about? this thing has no legs behind the suey-generous remedy that the chief justice so brilliantly concocted in order to save these families with their children and the individuals from losing their money.

as far as the equal, the prompt access provision, i would note that the amendment which is a very celebrated amendment, it's too obscure for those of you who aren't medicaid people to bore you with. there's a part of the statute that says you must be given prompt access to medical assistance. as of 2010, there was a split in the circuits about how to understand that provision. whether it's just the coverage or actually the services, and congress clarified that all along it had meant the services and not just the coverage because precisely for this group of people access to care is the thing that we health lawyers care about above all. the financing is the means to access of care. so i would say from a doctrinal point of view the medicaid portion of this decision is the most shaky portion of the decision to attach significance to. i can't comment on the other. i gather, you know, there's also

limited reach there. but on medicaid i think he was just so lomb nick. >> okay. >> i would say that david's argument about the cost to the states states and the coercion is fundamentally wrong on multiple levels. the first question is one that i think mike alluded to, when is the burden just too great? there is no defining principle here. when we added childhood immunizations to the program, did that become too big a burden? when we added long-term care, those kinds of things? i just don't know when to say it's coercion and when it's not under the medicaid program. the second is, i don't understand how the expax at 100% of federal spending at the outset -- i know it glides down to 90, but it starts at 100% -- i don't see how that constitutes the coercion. the third thing i'd say is that the provision he just alluded to is, first, not in front of the court, it wasn't part of what i understood to be the defining

quality of whether this was coercive or not -- >> that's not true. it's in the briefs. >> and it's in the status quo now. the statute was remedying, overturning one court decision that, um, misconstrued what the statute said about prompt access. and then finally, if there's anything, um, that is going to bankrupt states or the feds or us all, it's not the medicaid expansion, it's gregg's original point. health care costs are growing in all sectors. it's not growing peculiarly in medicaid, and it's certainly not going to grow at state expense peculiarly because of the expansion. >> okay. well w that -- [laughter] we have gone from the solomonic to the transcendental perspective yet again as we look deeply into this national rorschach test of this decision. let's open it up to questions and comments from all of you or short speeches masquerading as -- [laughter] so, please, go to the microphones if you would so we

can capture this. and if you would introduce yourself by name and affiliation, that would be very helpful. >> hi. deborah cohen from the american medical association. polling up on the -- following up on the cost argument then. basically, the way that act was structured, the subsidies, the reason that they used medicaid as a way to expand coverage is because it was cheaper to put more people on medicaid than to pay for the subsidies. so now it's -- and those states decide not to expand, you're now going to have the federal government, perhaps, spending more on the subsidies. and i think that was a possibility that was not, or a scenario not exactly costed out. because i don't think anyone expected that this would be the outcome. >> clarify that, because i don't believe the states would have the authority to do that. >> right. so the way the statute's written, um, it is possible if

you earn income at the poverty level or higher to get subsidies if you're not medicaid-eligible. so in a state that had no medicaid program, presumably you would not be medicaid eligible. but if you're below 100% poverty, there is no federal subsidy for you, so we would have this situation with the poorest people in the state without any means of subsidization. >> so it'd just be that narrow group between 100 and 133%? >> who could get a subsidy. >> right. >> meanwhile, all of the poor people in the united states would find themselves, um, you know, simply out in the cold. >> by the way, we pointed out that that is another transformative feature. but let me just say in 30 seconds or less -- not to show off my philosophical, but has anybody heard about transformation of quantity to quality? it's the question of what is the cumulative effect. the states honestly believe, and

eve seen the numbers to -- i've seen the numbers to support, that this final step of expansion whatever its policy merits and wonderful social consequences is going to bankrupt them. that's a fact. and the government has proffered no evidence to rebut that. >> it's long-term care. [laughter] >> well, there are countervailing studies. i mean, the urban institute shows, in fact, an enormous savings over ten years. so so there were, like in all of these issues, sort of dueling cost estimates on both sides. >> but i want to come in on david's behalf on this. we all know or those of us with enough gray hair know what a disconnect there was between the 1965 estimates of how much the medicare program was going to cost over the years versus the reality of how that program exploded. and to me, that's not at all a reason why i'm not saying we shouldn't have done medicare. to me, that was one of the great moral accomplishments of this country.

but states, like all of us when we invest our money or take on obligations, are risk averse. and are hugely anxious about this. medicaid programs are blowing up state budgets. actually, the portion that involves care for the elderly rather than care for the poor which is really blowing up state budgets. governors, democratic governor of tennessee cutting back on tenn care years back. lots of examples of that. so there's huge anxiety. i differ with david about whether that anxiety deserves, should be constitutionalized and given constitutional status. i think that's policy anxiety that we ought to have. but, you know, it's real. >> i'm sorry, i just have to say a word about this argument because it just seems so bizarre. um, let's go back to basics here. the federal government doesn't have to have a medicaid program,

and the states don't have to accept medicaid, okay? so here's david's argument. congress comes along, and out of its beneficence offers the states a huge pot of money, that is to say medicaid. and david's saying the states are saying, help, help. we might accept this, save us from accepting it because if we accept it, we'll go bankrupt. this is craziness, right? [laughter] if they're worried about going bankrupt, for god's sake, don't accept the money. they don't have to accept medicaid. um, the reason why they're tempted to accept it is because they think they're not going to go bankrupt, but their citizens are going to benefit from it. it's very odd for a conservative to say that states have to be saved from their own bad decisions -- >> also, i would just like to ask tim, we know that many

flows -- money flows in lots of bizarre ways around states, around health care and around medicaid. and we know that a lot of these people who are not covered now under medicaid are also getting health care, and they are ending up in hospitals, and somebody is paying the bill. and we know that indirectly one way that hospitals and states have financed that is by pushing medicaid dollars around as well as raising premiums on their private insurance side. so we know a lot of this is already getting paid for, it's just getting paid for by hook or by crook, correct? >> yes. [laughter] well -- >> so now we're going to have something that's much more logical, theoretically. we will have clear coverage for people whose care will clearly be paid for through the medicaid program. but somehow that's worse than paying for it through all of these machinations that we're paying for it now. correct? >> well, i don't think it's worse. i think -- >> no, but that's the argument.

>> that's the argument, is that, um, direct subsidies are, um, worse than cross-subsidies. and it just seems odd to me. i mean, we have jerry rigged an entire insurance system so we can fund the cross-subsidies to take care of people up to the level of our moral demands. we're requiring emergency room care, we have all these various and sundry state charitable laws so, yes, we've created a system where we have moral demands, and we cross-subsidize it to get there. >> can i just say one thing? what michael delivered is an utter mischaracterization of our argument. our argument is very simple. we have states being given voluntarily at the front end when medicaid began an opportunity to opt into the program based on serb fiscal -- certain fiscal projections and calculations. now every state, the entirety of their health care delivery

network depends upon it. it was precipitously withdrawn. it would be a public health crisis and an unimaginable disaster. that's one prong of the hobbs yang choice. on the other hand, if you don't give them a choice, states believe -- despite some studies that sara referenced -- that accepting new medicaid would bankrupt them too. that is the classical essence of coercion. as i said during the first arguments, you can give somebody an offer they cannot reject, that's called coercion. and i'm not interested, frankly, about what's more economically efficient. let the federal government do medicaid directly like they do medicare. then we'd have a philosophical discussion. in a constitutional sense, you cannot give the states the choice because poplarrizing a sovereign is the surest way of

destroying sovereignty. it's that simple. >> can okay. we are going to try to move through these other questions, so let's go to this other side. >> hi. i'm sonya thwart, and i run an -- schwartz, and i run an online network called state reform. star rah and tim, we have to focus right away on the states. i know it's only been a day, but if you were still at hhs or, sara, imagining you were there, what do you think some of the first technical, legal questions about what's happened to the medicaid choice or what's happened to the medicaid option expansion, and how would you respond? >> i think the very first question that's -- and since most of the exing pang doesn't occur until -- expansion doesn't occur until 2014, but there is a condition in the aca that says states have to maintain their efforts until 2014, they can't back off of current programs, the so-called maintenance of effort provision, i think i've already heard a bunch of states asking does this, does the

roberts opinion nullify maintenance of effort, and i think the answer to that is clearly, no. the roberts opinion has several places in which it talks about his nullification of the penalty of the hammer, whatever you want to call it -- >> it's a gun to the head was, i think, the phrase that was used. [laughter] >> -- is exclusively about the expansion population, and the maintenance of effort is quintessentially about the existing medicaid program. so i think the first question that most states and governors might ask is do i still have to maintain effort, and the answer, i think, is clearly yes. sara? >> another question that i think will come up right away is, to the extent that the decision gives states more flexibility around the implementation of this eligibility group, um, does the decision in some ways change

the characteristics of the eligibility group? so, for example, because states have more flexibility, um, can a state cover fewer than all people falling within the new eligibility grouping? can the state cover what the law might call or what regulations might call reasonable subclassifications of the eligibility grouping, and if so, what will the federal contribution level be? does it stay at 100% if you do fewer than everybody? and the question, the earlier question about the availability of subsidies, at what point can the state stop the coverage and instead have the, have otherwise medicaid-eligible people rely on exchange subsidies. so i think fleshing out whether the decision in some way changes the basic characteristics of the new eligibility grouping insofar

as state flexibility is concerned is going to be right after maintenance of effort which i've always tended to think sort of a canard. i mean be, i've just never really understood the brouhaha around the maintenance of effort provision. because most states don't like to cut people off of the program anyway, they do many other things. but they don't want to do that. and so, um, and i think all we can do, i mean, there's nothing about the decision, that's why i started my remarks by saying nothing about the decision changes the text of the statute. if you opened up the text of the statute, it's the same text today that was there the day before yesterday in terms of describing the eligibility grouping or the federal financial participation levels. but i think a question for the secretary, um, in the interpreting the effect of this gloss on the statute is going to be, well, do i give states more leeway as a republican interpretation of their new

flexibility that might have existed before. and i think it's going to be, you know, months before we know the full answer. >> all right. let's go to a question here, please. >> hi, i'm michelle with march of dimes. i have a more technical question and then a broader philosophical. the quick one is, will states be allowed at any point in the duration coming forward to at a later point opt in to this medicaid expansion and receive the funds, or is there going to be a sort of open enrollment period in and the question in revert, if they opt in now, will they be able at a later point to withdraw from that if they realize there is a fear of bankrupting, for example? is that's the practical question. the other question is, um, i read some spinning about the impact, um, of this ruling on the congressional power with the commerce clause. um and, david, you referenced that a bit. i was just wondering what other

people's opinions are in terms of is this going to in some way hamper or limit the capacity of congress to use the commerce clause to implement social or economic policies? >> so let's go to the first part, and i guess we could paraphrase it. can the states -- are we making the states eat broccoli, or do the states have the option now to eat broccoli now when they want and they want to, if you will? sara. >> well, i think that is a very good question. i think that the -- here's what the statute says. beginning in january 2014, this new group, um, becomes a, you know, required group with an asterisk now under the program, so it's not really a required group in the normal sense. it's a group with limited enforcement powers from the secretary. and federal financial participation for this new group is available according to the schedule that tim laid out. that is in the first several

years it's at 100%, drops down to 90% in whatever the year is and thereafter. so i would assume that the secretary in thinking through how she will interpret this concept of flexibility will, you know, make it clear that the state has flexibility at least as to the year it comes in, that the funds that will be available will be the funds that would have been available in that fiscal year. so if you don't come in until 2020, you would get a 90 president match, not 100% match. but, you know, it's so hard to know. there are so many unknowns about taking what was a relatively, you know, viewed provision in one way and now having to think about what is the full meaning of what the court did to that provision by making, by essentially put anything flexibility where there had not been flexibility really. but some of those questions would come up with mandatory

coverage groups anyway. i mean, it's not as if these are the questions that don't get asked. the timing, no. but my guess is that we would find there are so many issues that hhs wrestled with even in the context of a mandatory coverage group that it's not exactly starting from scratch. i would expect that we will see some pretty comprehensive guidance in the coming weeks about how the secretary's inclined to interpret the law. so -- >> let me add one sentence. the court did not do a very good job rewriting the medicaid provision. which is why we are having these questions. >> very briefly in answer to that, i think, um, first that there's more than sufficient ambiguity in the court opinion to allow the secretary to have plenty of room for chevron deference in this area in the interpretation of the guidance. but to the second question i would ask back from sort of a devil's advocate point of view is or else what? because according to the robs'

opinion, the only thing the secretary can lose as a tool is if they apply for new money. if they don't apply for new money, what's the enforcement? >> okay. there was also a commerce clause question asked. mike, do you want to take it? >> i think i would say what i said before which is that it's too early to tell. the way that the architects of this lawsuit phrased the question, they went out of their way to say that this law could be struck down without implicating anything else. this was unique because it was regulating somebody who was not in commerce, who was doingen don nothing. -- who was doing nothing. and if that's what it continues to be, it will be relatively unimportant. on the other hand, one could see the possibility that this would be an opening wedge in a systematic effort to unravel the modern welfare state, and whether that happens or not depends on who the next justices on the court are. >> so connect those dots. how it would be the opening

salvo in unraveling -- >> so, um, well, david indicated one way, so one way to read the opinion -- i don't think it's the only way -- but one way to read the opinion is as a very narrow interpretation of the necessary and proper clause. if, if that clause were to be significantly narrowed -- and we're going to have to wait to see -- then many other programs might also fall. another thing is if you, as i read not roberts' opinion, but the four dissenters', again, this is just quite bizarre. but i think their opinion can be read as saying if a government spending program gets too big, then by definition it becomes coercive. so that means that any large program is, therefore, unconstitutional. and, again, one could imagine, you know, if mitt romney gets elected and he gets his people on the court, who knows what

they'll do in. >> in my personal opinion, but for what it's worth, no existing statute exists in the four corners of this opinion. point number one. point number two, to be fair, the concern has always been at least on my part in the effort to save the faltering redistributionist administrative state as we're seeing in europe, that folks would start enacting numerous other mandates that effect cross-subsidies in an effort to avoid the pesky problem of not being able to raise taxes enough. so it is to stave off future problems that this was waged, not to take down an existing statute. the final point if you read fairly the joint dissent, they're only talking about the spending clause in the context of pulling in states. nothing prevents the federal government from bankrupting everybody. let them run it directly.

political accountability, yes, but constitutionally they can raise taxes to the tune of 99% and have everybody lead wonderful lives. maybe we can last for a few years on that basis. europe shows us what happens when you continue to practice it. but that's not a constitutional problem. it's only what they're saying here, if the federal government cannot do itself, they have to pull in the states. once you pull in the states, the coercion comes in. it is only that part that's relevant. >> okay. let's go to question here. >> okay, thank you. hi, i'm tammy larson from the u.s. government accountability office, and i had a question about the medicaid piece of what we've been talking about. specifically, when you look at p paca, you know, congress chose to make a mandatory medicaid category, and then the exchanges would pick up over and beyond that. so now the question becomes does congress have to look back at

some of the provisions, for example, what they did with the dish funding cuts to account for a different amount of uninsured in different states that don't accommodate the way ppaca was envisioned for the universal coverage piece? if that makes sense. >> you go. [laughter] >> um, on a policy basis does it sort of under-- does it call into question how those dis proportionate hospital care summits were made, yes, it calls into question the policy there. does the congress have to go back and change that? no, i don't think so. and, in fact, there's some strong political reasons to think that both sides in the congress might want to leave the sort of confusion in place. the people who want medicaid expansion might want the providers having a strong motivation to get a medicaid expansion. the people who don't might want

to see the chaos. >> yeah, i completely agree. i mean, i think one of the incentives for a state to move forward on the expansion will be precisely that its other revenues coming in may begin to drop. and so there is a great need to maintain if you think of, again, of medicaid as a way to finance health care for indigent people, um, the point that had been made all morning, you know, you either do it directly, or you do it indirectly. if your dish funds are dropping, you have a real good reason to adopt the expansion. ..

the world. we are 25th in life expectancy and 37th in quality and equity and i think the court took a look and tried to find a way, especially justice roberts, not to interfere with congress trying to address that problem. however, they do it by dealing with one little component. also, by the way, there was a great article op-ed piece in the post by donna who did find distinction purchase that health care is the only commodity that you must have and the you can't necessarily for a number of people they can get it because of pre-existing conditions. having said that, i've got a question on the medicaid program because i've been struggling with this since i read the opinion yesterday. when i was in government we actually found a way to read the

epsd program which said congress cannot finance states and take the money back if there was a single kid who wasn't served by epsdt and we had a state that was improving and found a way to read into that that the congress really meant 5%, not zero and i'm just wondering if we aren't going to be able to find a way with political discussions and setting up ways for the state who don't want to participate to get some political coverage to drive folks through the exchange in the states and find some mechanism to read into the law a way to subsidize them. longwinded. >> i think the question of what inducements the secretary can use -- assuming they have

flexibility so we are not worried anymore about coercion, the problem then just becomes what inducement excess by the inherent nature of bill wall -- the law verses with the secretary still has in her armamentarium for encouraging states to come in and come and foley. i think it's exactly right we're talking about it before that the funding is going down becomes a significant issue. other issues have to deal with the fact you are below a certain income level it simply doesn't provide for you to get subsidies through the exchange, so the question is should a woman working as a waitress for the minimum wage making 70% of the federal poverty level really be told that she doesn't have insurance unless she works

enough overtime hours over a year to once in awhile have her income giving up for someone that has a seasonal job the issue of course is switching among the markets that have been a significant one from the wall from the very beginning. but you will be able to have -- be able to make a picture from state legislators showing the same woman who depending on whether it's the christmas season and she gets 20 hours' extra week of precious work time is going to have insurance and then she's going to have zero. that's a big difference between saying you're going to be on medicaid some time and others. >> even at the risk of turning. >> all right. we are going to try to get through very short questions and very short answers because we are almost out of time. >> my name is jonathan with the department of health and human services. my question is not a policy question. it's a personal legal question. in reading the opinion, if you know, chief justice roberts, you know, went to great lengths to

avoid sort of making policy judgments and i think much has been made about him trying to be an umpire and all these things in the restraint. i saw that in much of the opinion, but it didn't seem to come through in the senate case actually. and this designation of a new program seemed entirely activist, and particularly interesting to me was that he said that 133% of the federal poverty limit was not the least among us. that wasn't the original congressional intent, which was to cover the least among us. have others sort of felt this discrepancy and the judicial activism bursas restraint? i haven't heard much. >> so the bottom 5% of the least among us for just the bottom 1%. >> let me defend the chief justice by pointing out it is a very simple proposition the original medicaid program began as a effort giving the states a

choice whether to opt in and had certain parameters. those parameters were changed. the question is this a step too far. and what they were trying to do here which i think all of you should know went least on this panel, he had to take the whole thing down. by the way, if you take down medicaid fairly you cannot work we all agree on that sort of taken down the whole statute. he did it to save the statute and tried to rewrite. to engage in the legislative activities you by definition start making policy judgments which is for the article 3 courts but once you embark on that path -- >> i have to say i think it is appalling and insensitive for the chief justice to say 133% of the poverty level are not among the least among us. this is an indication of how out

of touch some members of the supreme court are with the way many americans have to live their lives. on the question of activism, the truth of the matter is there is no justice on the supreme court that isn't a judicial activist when the supreme court strikes down affirmative action programs as they will almost certainly next year. no justice has pointed to anything in the language in the original understanding of the constitution that says affirmative action is unconstitutional we of conservative activists and little activists and the sooner we get they're the sooner we will come to some mature understanding of what the constitutional law is all about. >> last question. >> i will try to make it as short as possible. my name is richard atkins a

recent graduate at the school and its direct my question is directed towards gregg perhaps others because gregg is also a physician has of ibm and this is a derivative of the discussion that you had. access to health care is one thing. availability of health care is something entirely different. and what do you think the impact of this law is going to have on availability particularly physicians who see the requirements ... all is so onerous whether it is an reporting or income or the requirement to set up a whole new style of practice and larger groups which some physicians don't want. they prefer to be individual practitioners. the impact is going to be significantly on physicians who were in mid career because the

of the largest percent of physicians in the country. how many of them do you think will leave the profession because -- and do something else because the impact? >> the point is often made that after the clinton health care reform effort collapsed, change had been quickly in medical care and was expected to happen if the clinton plan had succeeded. there are powerful economic forces operating in both the public side and the private side that are going to set limits on the discussion that the physicians have coming and they are also operating to nudge the physicians to a larger group practice situation with a baby aco or multi group practices that mayo and guy singer are the type four. there will be more incentives from the private side.

if president romney got the wrong in a plan for medicare in 2014 because everything would be private plans doing it, powerful incentives for physicians to spend less to follow evidence based purchase particles through a greater extent, less discretion. so i think there are a lot of changes that are coming and it's less a matter of who does it than just the reality coming along. i think some of the medical specialty groups are finding new action that ultimately will not prevail. i have a case against that a month ago or two months ago, making this point that china doesn't matter all that much who wins politically. both sides, whether you are talking about the ipad under the affordable care act or the

rhine and the plan and its approach to medicare. both sides are doing very similar things. >> with that i would like to close by asking each of you a very quick question. we have four law professors and david, we will make an honor a professor for the day. [laughter] give me the name of the seminar he would teach next year to third year law students about this case. what would you call it, and again, just the title. you don't have to give me the curriculum or the syllabus, just the title. >> now what? >> accountability doing it right wouldn't have had any of those problems of congress approached the issue accountable down the tax properly in the first place. politics and fill all -- and the

law. >> struggle with the whole health insurance. >> sing it again? >> this trouble for the soul of health insurance. >> there you have it. those of you that want to come back and take the courses next year we will see if we can bring them to you. thank you so much. [applause]

>> at one time the 1967 this was called the bloodiest 47 acres in america.

the federal reserve associate general counsel recently told lawmakers the existing financial regulations may not cover all mobile payment services. she said because they are written prior to the second logical service, consumers are now more vulnerable to fraud. her comments came during a house subcommittee hearing examining whether the current regulations provide adequate protection for the users of the payment services. this is about 50 minutes. >> this hearing will come to order. ms. maloney is on her way and said go ahead and start so i will start with my opening statement. first i want to welcome the witnesses. this morning's hearing marks the final installment in a series of

hearings the subcommittee has had on the future of money. in march, we held a hearing that serve as a primer for members on the current landscape of mobile payments. earlier this week the ranking member and i had a dinner coming and a bipartisan dinner that afforded members and staff the opportunity to learn more about the different technological developments in the mobile payments. and i for one can say it's an exciting future, and i wish i had the brain that to be able to invest some of these things myself. this morning we will learn about the current regulatory structure for the payment system and the developments in the payment and the regulatory structure. the of seen tremendous growth and innovation to technology that will no doubt influence the payment system in the nation and abroad. we can't really imagine what the technology in 86 years from now. for that reason it's important for the committee to understand the rules of the road for the mobile payments. today's regulatory structure

provides seamless protection for consumers to read ec dispute resolution and protect against money laundering and the financing of terrorism. or do we need to make changes and if so, what changes should be made, minor or major? for that reason we have two very important voices to talk about today's regulatory structure. the federal reserve has been the expert on the payment system for a long time and the boston and atlanta fed to bunch of the best examination of the promise and potential pitfalls of mobile payments. while the consumer protection duties were transferred to the cfpd2 years ago the reserve will continue to be an important player. the witnesses -- as witnesses at our first mobile payment hearing warrant, some of the payment available including those tight to phone bills may not fall under current payment law as we understand. meanwhile the treasury's financial crimes enforcement network fncen is in the best

position to tell us if any parts of the new reforms of the payments might fall outside of our current requirements for financial institutions to report suspicious activities. we need to make certain we get the latter part right. the senior economist at the world bank has warned explicitly that we must work harder to follow the future of money into the established receiver to words and anonymity. i would ask unanimous consent to insert into the record from cfpb. i want to thank both of the witnesses for their work that they've done preparing for today's hearing and for the years of the government service. in particular the committee would like to thank director freeze and we know is a difficult job. we are aware your transition to a different job declined the

invitation to testify as we want to thank you for coming today. i would now like to recognize -- there she is. i thought i heard her coming in. >> i apologize. we had a democratic caucus meeting for health care. >> mobile payments i think. do you want to -- i recognize the ranking member. >> thanks so much to the chairwoman command welcome, the federal reserve and fincen. this is the fear of looking at the issue of mobil payments. and i have to commend the chairwoman and the committee for holding this series on the new technology and literally we have a dinner to look bad it and expose the new technology to the members of congress and we saw this earlier in the week and i am pleased we are trying to get out ahead of the issues rather

than finding ourselves reacting being proactive, and i really think the i would like to put my opening statement in the record. believe me, it is very interesting. but i would like to hear the testimony today and have the opportunity to ask questions particularly in the area of identity and security and maintaining the security of consumers with these products. thank you. i yelled back. >> i would like to recognize canseco. >> thank you madam chair. the payment industry represents a tremendous opportunity for everyone for consumers and merchants to financial institutions and other providers. mobile payments have already proven to be the most significant development of the consumer payment methods since the move from checks to debit cards. this would be a great number of benefits particularly in the form of competition and lower

costs for consumers. yet it is essential that policy makers and regulators structure a regulatory framework that helps protect the private information of mobile users but also encourages investment and innovation within the industry. now, it is very relevant to mention that the last significant policy initiative in this area which was price-fixing in the debit card market was the exact opposite of what the congress and regulators should be doing and i hope we learn from that very significant mistake. and so, madam chair, my hope is that today's hearing helps congress and regulators embrace these new innovations and that it leads to a properly constructed regulatory framework that works for everybody involved. all i yield back. >> mr. space for three minutes.

stat thank you. i commend you on the ranking member for putting this very important and timely hitting together. there is no time than the rapid advancement of technology no area is that more profound than in the mobile phones we use. we become a pleasantly captive by the cell phones. and we need to make sure that the american people are adequately protected from abuses of invasions of identification. many people may not know, but 92% of all the american people now use mobile phones. the payphone has gone by the way. and with that comes all other types of services that are connected with it. many times people have their bank accounts, their bank statements on their mobile

phones. they have medical information, pharmaceutical and formation, the drug information all on their phones. so it has become an integral part of our physical beings. so we really have to make sure that adequate protections, are there. and half of these phones are what we call smart phones which are capable of processing mobile payments, credit card payments. so when you look at the entire scope of the significant amount of impact that mobile phones have on our entire existence particularly the very violent and pertinent information regarding our financial accounts , health care to all very important issues it's very important and we make sure that

proper regulations are in place to protect american people, and i look forward to hearing the panel. thank you. >> thank you, mr. scott. with that i believe for opening statements are completed and i would like to turn to the panel. our first presenter is mr. james freis at the department of treasury. welcome. welcome your statement. >> thank you and good morning. chairwoman capito comer lynndie member maloney and -- >> could i ask you to pull the microphone. yes. thank you. >> im jim freis director of fincen and i pleased to be here today to discuss fincen's efforts to establish a meaningful payment network for mobile payments and other emerging payment methods. my testimony today will focus on some of the most important regulatory and analytical work being done to prevent criminal

abuse in the financial system as technologically advanced create innovative ways to move money. at the outset, i would like to make a distinction between mobile banking and mobile payments. while mobile banking involves communication and direction from an account holder about their account at a depository institution, mobile payments to essentially involve the direction of the fund's outside of a bank account to affect payments or other transfers. let me emphasize that both types of activities are subject to relevant fincen edition prieta i money laundering and terrorist financing purposes. neither is part of the requirements on banks or as part of the requirement of the money transmitters. recognizing that payment systems evolve rapidly, fincen took a comprehensive approach in this area revising its regulation. one year ago specifically to cover mobile payments and other innovations.

the rules to the love to be technologically neutral and hopefully cover new developments for years to come. specifically, the rule focuses more on the underlining activity as opposed to the particular electronic communication vehicle. if a mobile phone allows person-to-person payments or payments that cross borders in or out of the country than the provider must identify the customer come to keep records of transactions, have procedures in place to report possible money-laundering were other suspicious activity. in furtherance of that come fincen's regulations make it clear the acceptance of funds from one person and then the transmission of those funds to another person by any means constitutes money transition and that any person doing business wholley in part in the united states engages in the transition regardless of their business lines such as telecommunications services would likely be a money

service business subject to the regulations and as such must register and comply with all requirements applicable to a money transmitter. shortly after publication last year the final prepaid access regulation and as a part of the commitment to engage in dialogue with industries that we regulate, fincen held a series of town hall meetings with representatives from the prepaid access industry. fincen release the number of guidance with respect to the prepaid access regulations and we anticipate that additional guidance would be forthcoming related to some of the issues raised by the industry attendees during the town hall as well as ongoing request for clarification guidance on the new regulatory framework. i'd like now to briefly mention some of the analytical work in the mobile payment space to read as a part of our ongoing support for the law enforcement, fincen regularly provides reference manuals to help better understand the working of the payment mechanisms and to provide the steps to utilize this understanding in specific

criminal investigations. one recent such manual focus on mobile payments. in preparing the manual and the subsequent law enforcement outreach we have seen an interesting trend in the mobile payment industry where different telecommunications systems and financial market systems and merge and become interwoven in the same payment transaction. for example, a customer might choose to initiate a remittance to a physical location of the transaction than being processed through the internal system. the payment of the funds then go to the recipients mobil account. upon the completion of the transaction, the recipient typically receives a text message, notification on their mobile phone that indicates the funds have been credited to their mobile account. this transactional overlap resulting in multiple the informational choke points that may assist law enforcement efforts to follow the money trail and identify other accounts and transactions associated with a given subject.

fortunately, fincen's prepaid access regulation was specifically designed to be flexible and to accommodate new technology as the merger but also to capture in of a minute payment methods used by institutions such as aspects of the scenario that i just described. in the area of the payment methods the administration has made appropriate oversight of prepaid access program and fincen is encouraged by the progress we've made this far. moving forward, we are dedicated to continuing to build on these accomplishments as we encourage legitimate consumer activity to flourish but also help financial service providers focus on serving their customers, not criminals. thank you for inviting me to testify before you today. i would be happy to answer any questions you might have. >> thank you, director freis. we will have this stephanie martin assistant counsel of the federal reserve board of governors. welcome to respond chairman

capito, ranking member maloney and members of the subcommittee, thank you for inviting me to appear before you today to talk about the regulation of mobile payments. the evolution of technologies that enable consumers to conduct financial transactions using mobile devices has the potential to affect their financial lives an important and new ways including by expanding access to mainstream financial services, to the segments of the population that are currently not bank or under banked. but with any payment system including a mobile payment system, regulators have key concerns. one, whether consumers are protected if something goes wrong such as an unauthorized transaction coming and number two, whether the system provides appropriate security and confidentiality for the transmission and storage of the payment construction and personal financial information of consumers.

in many mobile payments, at least some parts of the transaction are sold through existing payment systems such as card networks. subject and statutes, rules and procedures that are already in place. the evolving aspect of mobile payments typically are related to new consumer interfaces and new payment or settlement arrangements which can involve service providers that haven't traditionally been in the payment business. for example, a telephone company. making payments through nontraditional arrangements may change the legal protections related to the purchase depending on the details in the arrangement and the applicable statutes and rules. there is a legal framework to address the payment activities of banks and federal bank regulators have the tools to ensure that banks offer mobile payment service is in compliance with the consumer protection provisions of any applicable

laws or rules such as the electronic funds transfer act. the application of most federal consumer law to the mobile payment transactions is subject to the rulemakings and interpreted authority of the consumer financial protection bureau. as a part of the supervisory process, the banking agencies review a bank security protection for the new payment interfaces as well as for the compliance with rules on information security identity theft prevention and antimoney laundering. many of the questions that have arisen with respect to the mobile payments, however, relate to the involvement of nonbanks. nonbanks can have a variety of roles in a transaction such as an agent of a bank, the manager of a prepaid value program, money transmitter or company the bills customers for payment transactions. the applicability of existing

consumer protection wall or security requirements to the nonbanks generally depends on them on banks' role in the mobile payment and the specific provisions of the particular statute. in conclusion, it's difficult to make broad generalizations about the applicability of existing statutes to the payment to read this is due to the different type of service providers, banks and nonbanks through the wide variety of payment arrangements and the potential applicability of both banking and nonbanking wall to any given arrangement. given the recent technological developments in the mobile pence, further analysis of the adequacy of existing walls may be appropriate in order to ensure that consumers are adequately protected. at the same time, given the fast paced nature of the changes in this area and the potential for significant improvement in consumer services through mobile payments, further fact finding

that analysis would be helpful to ensure that any legislative or regulatory proposal would not stifle the very innovation would benefit consumers overall. thank you again for inviting me to appear today. i am happy to answer any of the committee questions. >> i want to thank you both and i will begin with my five minutes of questioning. i would like to make a comment on something ms. martin use it at the end of your statement. because of the dinner we have last night i think we have a whole range of forward thinking mobile payments, some that are currently in the system and some that are innovating into the system. one of the concerns they have come and i think we share the concerns and you did your your comment we don't get ahead of the curve here regularly, with regulation, and stifled

innovation and cut off what could be and ease of payment bringing in people that are not in the bank or are under bank so i think the point of this hearing is to see where are we and where do we need to be, not so much where do we as lawmakers need to come in i don't think that's the issue but it's something to keep our eye on. i would like to ask the general question or there in existence now informal or formal agreements between banks on the mobile p medish you is this a structure that the banks have formally recognized through specific agreements along the lines of mobile payments and consumer protections that are contained within or doesn't fall within just a general -- >> for the particular new

arrangements using the new technologies, usually you see a partnership between a bank, nonbank providers, sometimes a telephone company would be involved so in a particular mobile payment arrangement would have contracts and payments in place all the woodwork. that many of these arrangements ultimately get funding and to your mobile wallet for a sample using the existing i would call them payment reels so a consumer virtual wall but that want to perhaps put in that will put a credit card or debit card would be funding that funding be that could affect card transactions through the normal -- those arrangements and rules already in place. is that responsive? >> i don't know if you have a comment on that if you are aware looking internationally, to my

car their specialist agreement for the payments that you are aware of or do they just fall within the normal bank to bank relationship agreements that are already existing? >> i would concur with ms. martin that if you are trying to transfer between different financial institutions, then it's largely today reliant on existing banks networks such as those involving what we commonly known as the mastercard or visa which you need a bank to be an issue were of the card relationship talking about the proprietary systems on going to a specific money transmitters and i must be a member of that network. >> in your statement you're talking about the bank participants in mobile payments. one of the innovators that we saw was talking about being able to have a card that you could

swap between paying for your visa debit for example or maybe rewards points. the would be something that really wouldn't be covered because the would-be -- let's say you were going to be using your usair's frequent-flier miles or something of that nature. is that something you've taken into consideration, do you understand why masking? >> bye understanding you can have a mobile wallet arrangement you can choose different ways of paying for what ever you are purchasing. to you have a credit card with flight miles to use those to redeem. it is usually redeemable at a specific merchant i can use my u.s. air flight miles at u.s. air so that is in a very proprietary system but if i were to use my debit card then i would have to get the money from

my bank account so that would move over a payment card network. so i think it's going to depend on what car did you pull all of your virtual will put as to what transactional rail. >> the consumer protection jurisdictions and are they covering all sorts of different transactions that may be coming over the virtual wallet. >> i think one of the issues is to get the consumer protection law such as the efta if there's a credit card involved. of course the cfp -- cfpb will have the rule writing. but those do apply in each case and on bank is involved. >> that is the point i think you were making. >> in some cases they were written with a bank relationship in mind and the concept may apply your man not apply depending with them on bank role

is and how the system is structured. >> ms. maloney. >> first of all i want to thank both of the panelists today for your testimony, and i agree with the chairlady the we certainly do not want to stifle innovation which was part of your testimony as we move forward to make sure consumers are protected and money laundering is prevented and other things are in place. as you look at this evil thing new technology i must say in terms of privacy and consumer protection some of the technology really identifies the person by their voice, by a photograph. a very detailed idea that would be hard for someone to steal their identity which is a growing crime in america among many of our constituents. i would like to get the sense from you because this is not necessarily a bank.

it's not necessarily -- it's like you. who do you think would be the primary regulator? someone has to be in charge. which agency should take the roll over the payments which are not necessarily think product squawks and what -- to what extent should the banking regulator be involved and coordinate and who do you see taking the form of the primary regulator, the sec, the spd, federal reserve, treasury? your comments first mr. freis and then ms. martin how do you see this being regulated? we have to have someone to call if there is a problem. >> thank you for your question. from my perspective that fincen, we have a great deal of experience in working with a range of different financial service providers and eight range of fred agencies to ensure

regulation. for them anti-islam during finance purposes the principle is any way if you can use money intermediate all you by a collector so that's the reason why fincen looks at this aspect centrally in the example but i've given whether money transmission is made through a bank what it's made through a traditional money services business or throop new provider such as in the mobile payment space we have a common interest in making sure that we've done as much as possible to mitigate the risk. in so doing we rely on the banking agencies or state regulators in the money transmission space coming and we found that that is an important working model just as we do in other areas such as insurance working with the state or the sec or the securities industry. each of them will have a primary

responsibility with respect to whether its safety and soundness, consumer protection, but our ability of a single mission the antilaundering for requirements i think is central to avoiding the regulatory gap in the balances they might take the criminals frankly what abuse, so i think the model but we have at least from my purpose is working. >> ms. martin? >> i agree with what jim said. i think it is an interesting strategic question to think about what agency should take ownership of this area. such a broad syria and the covers so many different types of entities is really hard to plan to one agency with the right experience and expertise that can cover the gamut the and so i think at least the first step would certainly seem to me there should be coordination and

consultation among all of the agency's name as well as fincen and state regulators. as an initial step to figure out who's got what, who's covering what bases, would gaps there are that need to be addressed and i think you can achieve consistent results through that way in the interagency coordination. >> that's true but finally someone has to be in charge of the ones they are pointing fingers at each other. building on the question of the statement that you had, they were testifying to us were telling us in exploring the new technologies that they are out there now, tens of thousands of people are already using these products so i wanted to know what protections or actions have states put in place to protect the consumers from unauthorized transactions and disputed charges to the prepaid phone

deposits for wireless phone bills and i'm wondering what actions the states have taken if any in this area. >> they have money transmitter laws where the entity meets the definition of the money transmitter and have registration requirements and the bonding investment limitations so to that extent they do have some always do when you talk about bringing phone companies and the question i think perhaps that is something we might want the fcc to weigh in on. i'm not sure what kind of protections exist in the telecommunications law for consumers that are built for a particular line items that might represent a payment so that i think is worth some further investigation. >> my time is up. mr. canseco. >> stifel madam chairman.

ms. martin, we often talk about the banks in the country. it's noted that 10% of mobile payment users don't have a bank account and roughly 50 million americans are either unbanked or unbanked. would they be more or less likely to enter the banking system? >> it's hard to predict the second question that you asked. i think mobile payments present a good opportunity for the bank and unbanked to obtain payment services perhaps that are more sufficient than their alternatives are today to check cash or money transmitter. as you stated, somebody stated over 90% of people do have a mobile phone, so it is a very ready device for them to enter

into the financial system. to the extent that banks can offer product sar available through that mechanism, that might be a way to get people into a bank relationship through a mobile phone that is the replacement for a check catcher and bodying a money order. >> one concern that i have is that we adopt a regulatory framework that makes it more costly and more prohibitive for the marketers to innovate within the space. what specific steps should regulators be taking to encourage innovation and investment in the mobile payment space and also ensuring that the data security and enforcement of antimoney-laundering law are working >> the fine line between regulation and non-stifling

innovation is always the key to the i think it's important for the regulators to set some priorities and key concerns that you would like to see these mobile payment arrangements regardless of how they are structured. and then in my testimony, the basic consumer protections come security you might add antimoney laundering to that list. so if we can look across all these arrangements and make sure that the key concerns are met, then maybe you don't want to drill down into more detailed requirements until you see where the market is going to come out so allow people to experiment and innovate with pilot programs until some best industry practices are established and then that might be a time you see particular patterns emerging you think you should address with more regulation that might be the time to do that. >> this next question goes to you mr. freis and ms. martin do

you think the standards should apply to mobile payments and if so, what type of coordination is going on between regulators and the united states and other countries? >> i'm happy to address that first. with respect to our antimoney laundering efforts we have developed international principles in terms of expectations to with the risks are and efforts to mitigate them. we do that at a broad level in terms of different products including money transmission, not things that are specific to the divide of mobile payments as opposed to other mechanisms and i'll believe that is the right approach especially based on the concern you just expressed about the rapidly evolving technology to find the risk and expectation of how to mitigate them and not

to prescribe one specific area that by that time we had agreed on any international basis would already be obsolete in terms of technological advances that is being done on an international basis through the financial action task force the u.s. has been active in guiding those developments and pushing other countries to work in that area. i can tell you in my own work in the development the prepaid excess regulation including mobile phones as i described in my testimony i very actively engaged with my counterpart of the regulatory side and law enforcement support through the process sending them copies of documents and we put them out for public notice and comment seeking from them examples of specific cases they might have seen law enforcement abuse and mature we are addressing those specific concerns. >> ms. martin? >> i would also add that it seems to me that this type of

service is so new and rapidly evolving but it's a bit early at this point to start thinking about international regulatory standards. generally those kinds of discussions come when systems are more mature and principles and best practices have been established and that really hasn't happened yet. >> but we need to start. >> i do agree with that. >> thank you. i see that my time is lapsed. >> i would like to ask for unanimous consent we insert the following in the record from the cfpb and recognize mr. baca for questions. >> thank you madame chair and ranking member for calling the witnesses here this morning. one of the things i want to ask basically in reviewing the topic is injuring the consumers understand the product. i think that's important that they understand the product he or she is using and the risks

involved become very important with the advancement of technology we have seen security threats grow as well when it comes to electronic payments specifically in the identification it's a concern to a lot of us what recourse to consumers have been the encounter problems with unauthorized charges for the amount they are charged and that is a common problem that we have, especially people that ticket advantage of a lot of our seniors, and seniors are the ones most vulnerable to this kind of problem even though they get involved in this technique i open up to either one of you to respond. >> the mobile payment results in a dead it through checking account or charged to a credit line covered by the efta or tila to kick in for consumers.

>> how will they be informed because they may be covered but they want to recoup their money and that is part of the problem. what is the time and the deily between the time something occurs and the time it is reimbursed? that means money and a lot of them are on fixed income. >> the existing under efta is the existing time frame set forth in the statute and should be disclosed to consumers in the bank disclosure as well. i believe it is within an investigation has to take place within ten days if the investigation is and concluded the consumer has to be reimbursed while the investigation continues but in many cases it gets concluded. >> will the consumer be informed of the process what is going on in that period of time? >> i can get back to you. >> if they don't know they don't know that you are doing anything. estimate the consumer initiates the process and should be

advised -- >> should be and doing it or two different things. >> the other point i want to make is it isn't clear that the law apply in all cases where non-bank is involved. i do know that some non-bank payment provider severin incorporated the efta rules in their user agreements. it's not quite the same thing but they're trying to use the procedures in there are arrangements. >> let me ask another question along those lines consumers sometimes find added administrative charges to tack on to their monthly bills. we used to see this a lot of credit cards. there's the cost of a lot of consumers to dispute the charges. how consistent for the mobile payment resolution policies of the various wireless providers

which is question number one command should federal regulators pursue a minimum national standard? >> the wireless provider consumer dispute resolution process would be something i think that the fcc would weigh in on that's really outside my area of expertise or knowledge that would have to do with if you get to build on your phone bill for a payment that you sent and that's wrong with our door rights and i think that merits some further investigation and fact-finding. >> consumers have practices -- my time is expired. i'm sorry. >> we have 58 seconds left but we have been called for a vote, so i'm going to go to mr. luetkemeyer because he is the next questioner and then if we want to come back we have to vote. let's go ahead with mr. luetkemeyer.

>> thank you for the mobile payment system that was quite instructional and after the meeting i told my staff i'm going to get half -- have to get rid of my rotary phone. thank you for being here this morning. just a couple quick follow-up questions with my colleague mr. canseco asked a couple questions regarding international standards, and ms. martin, you made the comment you're going to wait until the market is mature before you get the regulatory promulgation hearing account after the horse is out the door if you're going to take that approach. i would think the you would be wanting to work with those entities that are producing the new innovation and find ways to curtail abuses of those right off the bat. i was surprised that comment. >> my remark is detected specifically towards international standards.

>> that's what i'm concerned about. >> said, generally when we work on international standards and other contexts it's when we have some rules and thoughts in place about how that market is regulated here. all i'm saying is likely to further investigation domestically before we start talking internationally. >> are you familiar with the rules dealing with the international services? >> are you familiar with the cfpb rules? >> i am somewhat familiar with it. >> are you for it, against it? how is it going to affect mobile payments i guess is the questions. >> that's a good question i'm not sure there are in t-mobile payment arrangements at this time and maybe you can jump in

here that are being used for international remittances. >> actually there are some services for which mobile payments are a part of that international remittance as i mentioned in my written testimony covered from the regulatory free market and the congressman as responding to the question as well to reiterate that we at fincen recognize the risk of cross border payments, and it's for that purpose that although some of our regulations are subject to threshold activity tests, any ability to transfer money in or out of the country from a 0-dollar threshold automatically brings that payment mechanism including that mobile phone network into the regulatory framework in the subject to all of those controls. furthermore, one of the risks

that we have concern with is that if we impose an important regulatory framework on the united states but do not do something with the ability of entities from outside the country to access the would pose a vulnerability. so we specifically have also amended our regulatory framework last year taking advantage of the full authority that congress gave to assert jurisdiction over money transmitter providers to the extent that they are serving u.s. persons. so that also should avoid that type of regulatory arbitrage from outside the united states. >> the world bank, they've acknowledged the new services said the potential to facilitate money laundering. they recommend they take a primm approach on the tens of transfer advanced financial inclusion and ensure the soundness of the

financial services. what are your thoughts on those recommendations or are you aware of those? >> yes i am and it's exactly those kind of considerations we took into account in the development of the promulgation of the final rule last year and we will continue to monitor. one thing i can say is something i instituted after joining an agency more than five years ago is a year after we promulgate our new rules we take a look at whether it is achieving its intended effect and then we consider whether changes are made. it's something we will constantly look at and we will be doing in this area in a very rapidly evolving marketplace. >> i will yield back the balance of my time. >> final question for mr. scott and then we will dismiss the panel. we have about ten minutes left. mr. scott? >> thank you mr. chairman. let me ask you this. i suppose what advice would you give the american people if one

of them were to lose their cellphone or mobile phone what should they do regarding how they protect their vital information? what should they do if they lost their cellphone? >> i would say to things. one, before you lose your cellphone make sure you have a password on eight. password protect your cellphone. i also think it's important for consumers to understand what is on their phone and who to call if they lose their phone. to have that information somewhere other than on your phone would be a very good step in helping to mitigate the problems that could occur if you lose your cellphone. ..

particularly if that consumer may not have the password on that or they may have -- i mean you have some scam artists out there now who are capable of doing a lot of things with this advance in technology. so if we don't have a procedure, we ought to get something out so consumers will know how, when, where and who they contact, once they lose this precious

instrument. >> so i think maybe who you call might depend on what kinds of payments, mobile payment applications you have on your phone. so if i had a mobile wireless with a credit card attached to it i do exactly the same thing as if i lost my plastic. i would call the credit card company so i think many of those procedures that you would already do if you lost your real wallet would be the same thing you would do if you lost your phone. >> okay. do you have any comment on that? >> what advice would you give consumers? >> i think eating aware of the risks is clear. one thing that must be said is that part of the reason why these payment products, these prepaid whether it's through a mobile phone or a card have taken off because you do have recourse to your fund so unlike if you lost your wallet with cash in it, if you lost a card, you do have the ability to contact the providers to shut down that old card and get your money back.

so it's exactly that that has been a benefit to consumers and i'd be with you that it is important that they understand the steps you to take, to follow to get their funds back such as ms. martin described. >> thank you mr. chairman. >> thank you. with us being on a vote and no further questions, the chair would know that some members may have additional questions for the panel which it may wish to submit in writing. without objection the hearing record will remain open for 30 days for members to submit written questions to these

>> at one time, 1967, this is called the bloodiest 47 acres in america. >> the national organization for women held its annual conference last week in baltimore. one discussion focused on this years presidential and congressional races. this is almost an hour. >> come in. i am going to invite two of our interns. i'm going to turn this plenary around just slightly in terms of wanting a good panel discussion. so i want to do all of the

introductions first. and then we will go through without interruption so our ideas can flow. so i invite the interns up. first of all thank you to the interns. [applause] >> hello. my name is allison and i am interning at now. i'm going to introduce rick johnson. rick johnson joins research partners in 2004 as a senior analyst and is now the senior vice president. he is also professor at the george washington university graduate school of public management where he teaches political polling and qualitative research methods. in addition rick johnson has helped women get elected to office at all levels of government from city council to the u.s. senate. apart from being managing director at -- he has worked

with issues regarding women's rights, immigration reform, domestic islands, health care reform and capital punishment. so now, rick johnson. [applause] >> hi everyone. my name is renée and i am one of the other interns at now and i will be introducing julie greene. julie greene is the director for the afl-cio political department, working to empower working families, educate voters and to get out the vote activities. prior to her appointment as deputy director, greene served as assistant director for the political department and as an afl-cio campaign operations analyst. she is the founder of the next step, a bipartisan nonprofit focused on the professional development of young female political leaders and recently received the young woman of achievement award for community

organizing from the women's information network. we are excited to have julie greene here with us today and look forward to learning some of her valuable experiences. thank you. [applause] >> and i have taken the privilege of introducing the third member of our panel, dr. janet canterbury. as a distinguished career of professor of medicine and senior associate degree of the university of miami miller school of medicine, dr. canterbury is now the deputy dean and meredith's of the medical school. she headed a successful projects to enhance recruitment and professional development of women and minority faculty. dr. canterbury has offered over 100 original scientific and medical articles and is a member of many prestigious societies including the national academy for women's health education.

a committed women's rights activist, dr. canterbury has worked with now for many many years. she was twice elected president of dade county now florida and served as the florida now present as well. dr. canterbury serve two terms on the national board as southeast regional director and currently co-chairs the advisory committee to national now's poor. dr. canterbury chaired the study committee that resulted in now's adoption of a new amendment. she continues to be honored for her tireless work on behalf of women. among others, she is received the me brunson faculty award from the u.n. women's commission american business women's association woman of the year award, american medical women's association woman of the year award and woman of power award from now. our best credential however is that she is my closest and

dearest friend for 30 years. and is only because she is so smart and accomplished. we will begin, and i'm going to tell the panel is that we have a little thing here that gives you the ability to click slides forward and back. it has a cute little laser pointer that is probably on the ceiling somewhere. and that is all i know. we are going to start with rick johnson. please help me welcome rick johnson. [applause] >> good afternoon and thank you all. it is very much a pleasure to be here and i appreciate the invitation and the opportunity to get a little street cred with my two daughters, so thank you very much. [applause] that's right.

so i'm going to talk a little bit about the rising american electorate and specifically unmarried women and why this is a key group for the upcoming election. so why is the american elect dread a term that gets thrown around a bit and really white refers to unmarried women, people of color and those under the age of 30? and when you look at those groups and compile them together actually it ends up being roughly 53% of all eligible voters, so clearly it's important group over all. when we extract unmarried women from that group, and hold them out on their own, that in such being 25% of the voting population, so it is an absolutely key demographic that will be hard-pressed to win the

election if they don't have the attention of this group. so, and we did get -- why you have to put in the marital status. miracle status d'souza glance at being one of the key determinants in terms of registration, turnout and vote preference so it does make a difference. this may be a little hard to see for some of the folks in the audience but essentially if you look at -- this is a map of the unmarried women, unmarried women population by state so the darker states, the higher the percentage of unmarried women that are in that state and a few thing should things to jump out to you in hearing those battleground state names. there is a neat overlap here with some of those states. you have nevada, new mexico, north carolina, and certainly in some of the key congressional districts you also have populations of unmarried women

who can really swing an election. so being able to mobilize unmarried women will be key for the upcoming elections and certainly beyond because the trend is that among -- well, all of the components of the rising american elect dread, those population centers are growing but unmarried women are certainly growing at a very fast rate. so, when we look at the large percentage of people, and that's important, but when we dig into the numbers a little bit, and you look at marital status of women whether they have children or not, you can see a couple of key things. you have only 30% of unmarried women with children who votes. so, and so there is no judgment

here because you know if you have got two jobs and you are trying to raise kids, that is a huge challenge. but in terms of the group that desperately needs to have their voice heard, this is certainly one of them. when we look at the marital gap again, in terms of the presidential race, you can see a clear difference as well. there is a 40 four-point gap between unmarried women and married women in their support of president obama versus president romney. so, something should jump out at you and a couple of things. the first is certainly, as we have talked about the importance of mobilizing and, so you need to register and get unmarried women to turn out but also for married women, i wouldn't say well, let's just wipe them off. is a real opportunity to make

sure that married women fully understand what the candidates really stand for, and how do the candidates stand to impact the important issues in their lives. so, while we focus -- continued to focus on unmarried women, i would not say that we should write married women off by any means. so unmarried women in the economy. some real challenges, with a recovery that has gone on, in the economy, 31% of the jobs are filled by women and 69% have been filled by men. 66% of unmarried women impaired to 40% of married women reported having trouble paying a bill on time this past year, so there are serious economic challenges facing all of us but certainly to a disproportionate amount, unmarried women. i love the statistic that shows how challenging that environment

is, that 17% of unmarried women go without health insurance compared to eight.8% for married women and eight.6% for married men. and 28% of unmarried men. so it has a huge impact on the likelihood of having insurance. when we look at issues over all, this is the kind of list that you might see really from americans overall. when we see you know what are the most important issues. jobs and the economy certainly jump out as number one and number two and often people will link those two things together because they will see one driving the other. if people don't have jobs, it's challenging to make the economy flourish, so jobs are sort of things that are the cornerstone of the good economy. but, so the good news for this

is, you know, the issues that are talked about, they will be issues that unmarried women want to listen to and will be attentive to. we just need to make sure the information is framed and resonates with them. when we look at the congressional ballot, we can see that overall, we have 49% of unmarried women who would support the democrat running for congress as opposed to 23% who support a republican running for congress so a little revision since january, but nothing that i would actually be alarmed about right now. but it does signal again, if we can mobilize this group, it can have a huge impact. so come in terms of perceptions, who would do better when it comes to some of the key issues? when we asked unmarried women again, we said jobs and the

economy was a top concern, 66% of unmarried women said president obama would do a better job on jobs and 57% said that president obama would do a better job with the economy. and when it comes to sharing your values, 66% of unmarried women believe that president obama shares their values as opposed to 25% who say governor romney share their values. some of the other key issues, or sorry, for the approval of president obama, he has a 60% approval rating on jobs among unmarried women, and 56% on the economy. so really a pretty favorable rating and you know a group that is favorable to the president overall which bodes well for him in the election. and my last slide, this is a little bit of an eye chart so we will make sure it's available to all of you but what i want to

emphasize, these were some of the closest races, congressional races, in 2010. and you know all of you sitting in the room i am sure have done your part in the past two knock on doors, to make phonecalls, to send e-mails, too you know, try to mobilize friends and potential friends to get involved. so, there are times where you say do i really need to go through this all over again? gee whiz but the answer is absolutely yes. there were less than 9000 votes that separated a democratic win from a democratic loss in 2010, so that was a net swing of 12 congressional seats, because we were able to get the votes we needed. conversely, we could have lost 10 seats if we hadn't gotten

23,000 votes. so the margins, i mean, jerry connolly of virginia, 920 votes, 920 votes. we had a fantastic candidate, who was running in northern california and i mean, the type of progressive that the people in this room would love to have elected. standing shoulder-to-shoulder with you all on all of the issues that are important to you. in california it is the top two hugo on. he lost by 350 votes to be able to move onto the next round, 350 votes. so, i would say please, it can be tiring. continued to go out and tried to get people involved, especially with the cynicism that has taken place and the atmosphere we are in but i would ask you all to please persevere as you always have and continue to fight that

fight because there is so much riding on this and they're there is so much at stake. i mean i can tell you now, somebody two years from now is going to have another one of these charts, and they are going to be -- they are going to be elections that are going to be just as close if not closer and every vote really counts. hopefully you will be able to help get more folks to register and get to the polls. thank you. [applause] >> thank you, rick. as you know we had a plenary yesterday that focused on why we need to be actively involved and successful in these elections. this plenary is more about how we achieve success in the elections. one of the ways of course will be to organize with our allies and so i'm going to ask julie greene to speak next. [applause]

>> good afternoon everyone. i just want to start by saying thank you to patricia and the national organization for women for having me here. also thanks to rick who i have worked with for years and i am very honored to be on this panel with dr. canterbury who was obviously made such great contributions to women throughout her life. and on a personal note, i love talking to my labour brothers and sisters but it is rare that i get to talk to a roomful of politically engaged women, so i am just excited to be here. [applause] and bring this message to you. one of the things that the afl-cio is working on and that is a huge part of our political program this year is the voting rights component. voter registration and voter suppression. one of the things that i want to focus on with my presentation today is what has happened with our ability and right to be able to vote? i think one of the best ways to view that is just a kind of tell

a quick story and then get into what you can do and how we are engaged in this. you don't really have to go that far back in time to kind of see what has happened here. four years ago we had and historic election, electing the first african-american president in barack obama. that election, you know, what we saw was record turnout, the highest turnout in four decades. we saw obama winning 70% of all new voters, the people who had registered to vote for 2008 and democrats adding about two-thirds to their regular voting roll. this isn't something that went unnoticed two years later in 2010, which was i think a difficult year for all of us on the progressive side. as you all know, the 2010 election change the makeup really on the state level, which i think it's a pain that we have all really been feeling, changing a lot of democratic, democratically-controlled statehouses from democrat to

republican. and in fact in 2010, republicans picked up 678 legislative seats. i think we all know what followed from there. we have seen attacks on immigrants and we have seen attacks on workers and we have definitely seen and experienced different attacks on women. i think something out this -- something else that was going on but not too many people realize what's happening at the same time was there was a dedicated attack on our rights and abilities to just be up to vote. in 2011 alone there were only three states, three states, they didn't introduce some sort of voter suppression legislation during their legislative session. this is what the math looks like in 2011 in terms of the activity that's it place. and i know some of the colors are a little off but the states in red are states where bills passed. i think if we look at those dates and kind of compare where we have seen some dedicated attacks on women, there is a lot of overlap there. the states that are kind of in

purple are states where the bill passed but the governor vetoed the voter suppression bill. the states in yellow are states where bills were carried over 228 swells in the states in blue are states where bills were preceded or they just were not acted on. so when i'm talking about voter suppression legislation, here's the kind of thing that i'm talking about. i'm talking about cutting back their rights and abilities of everyone to vote early, requiring group of citizenship, partisan voter purges which we see actively happening now in florida, in in the same-day registrations, discouraging or making it very difficult for third-party groups to go out and just register voters and i think something that we have all heard of quite a bit about, voter i.d.. voter i.d. is something that i will touch on a little bit in just a couple of minutes and just explain why it's so bad because on the faces sounds very good but this particular legislation is something that affects women in a disproportionate way.

so why does it matter to us and why does it matter to women? well, we are 52% of the voting population. if you look at what happened in 2008, we had about 70 million women vote as opposed to about 60, 61%. as 10 million more women who participated in the voting process, and also if you look back at 2008, women strongly preferred obama to mccain. women beat men in 2008 and every single age category. this is the only bar chart that i i will show because i will leave that to rick and the polling realm. but i think that this is pretty compelling to look at when you just think about the power of women to use and execute their ability to vote. in general, you all are probably familiar with a lot of these numbers so we are 52% of the voting population. but only 16% of federal elected

offices are held by women. it dropped for the first time since 2010. and the composition of women who are elected officials on the state level is much, much worse. in some states it's only 10% in some states only 34%. and i think in some cases this kind of goes to why we have experienced some of the attacks that we have. not that all women support all the issues that those of us in this room do, but it is part of the story. and again, this is a snippet of what we have seen. we had and activist republican governor in wisconsin who not only -- i know. [laughter] who not only do no carried out in dedicated attack on the labor movement, but also you know, repealed the ability of the equal pay laws. we are seeing personhood amendments being pushed around this country on the state

legislative level and we also have a presidential candidate who really won't say where he stands on things like the lilly ledbetter pay act. so, this is dorothy cooper. dorothy cooper is somebody you should get to know. dorothy cooper is 96 years old. she lives in tennessee and in 2011, when tennessee passed their voter suppression bill, which included a voter i.d. component, dorothy wasn't, you know, she wasn't discouraged. she wanted to vote, so she went to her local dmv. she had a police i.d. that had been issued to her and she had her voter registration card. she went to go get her voter i.d. and they said, that wasn't sufficient enough documentation. again remembered dorothy is 96. she was born before the 19th amendment passed. she grew up during jim crow and she had voted in every single

election that she had been able to for the last 70 years. so when she was told that you know, she didn't have enough i.d. she said okay i'm going to go home and get my i.d. and i'm going to come back. she is 96 years old. i don't like going to the dmv and i'm 36 years old. she went, got her birth certificate, she got her social security card, she came back with her police i.d. and their voter registration card. she said -- they said it still wasn't enough because she didn't have her marriage license. dorothy was born with a different name then she had when she got married. and this is how voter i.d. disproportionately impacts women. okay, not just 96-year-old women but all women. when i think about the story, they think about a 96-year-old going back twice to a dmv who probably can't get around that easily, but who was compelled to protect her right to be able to

participate in the electoral process, i'm very inspired. but i also think about how many other women who are older, who wouldn't keep going back. dorothy took her story to the press and she made a big deal about. she got that law changed and she now has the ability to vote. [applause] that this is why we have to keep this fight up. so what can you do? you know, make sure that you are registered to vote. there are more states than florida who are doing these partisan voter purges. check and make sure. you may think you are on the registration role. check it out and make sure that is the case. if not, make sure you register. the second thing you can do is vote. that is what you can do, participate in this political process. and that make sure you carry this message to your friends and family and make sure that they are registered to vote and that they execute their ability to vote.

get active. we are going to need more poll workers and poll monitors at the polls monitoring what happens in this election than ever before. we have got a lot of redistricting that is happening. we have precincts that have moved. there is going to be an extreme amount of confusion at the polls. this is something you can do. and you can spread the word about what has happened in this country. at the afl-cio, we have a page called my vote, my rights.org. there, you can see we have one page that you can download right here on voter registration rights for all states and here there is just a general one pagers for every state in the united states. sevens teen states are translated into spanish by the way, where you can see just in general what has changed in the laws in your state, what you need to be able to vote and then

at the state action part, this is where you can sign up to be a poll worker or a poll monitor. everywhere that i'm going when i'm talking about this to different groups like the national organization for women or just around the country are within our own labor family i'm making sure to highlight this. somewhere in the neighborhood of five to 6 million people are estimated to be disenfranchised from voting the cousin of what has happened to our ability and rights, just within the last few years. so i'm going to leave you with a charge to make sure that you get active, make sure that you are registered and make sure that you vote this year. [applause] thank you. >> he hi. you have helped us by starting us down the road on what you can do. we have some additional

information from dr. canterbury starting with the difference women make and looking at an overview of politics nationwide and then we will move on to what you can do. >> thank you, patricia. as we began, begin, i want to start with a disqualifier, an important disqualifier that i am about to present to you. it is my own analysis and doesn't represent totally the national organization for women. i have used tremendous numbers of resources and clinical pundits, news articles, parties, labors, all kinds of opinions and of course i have consulted mightily with our own experts, linda burke, it's always a

person that i call. she was on vacation when i called her last time about some polling that i just couldn't understand. she said oh i am driving in the car. she said i don't care. she had to get the answer to the question. bonnie grabenhofer is always available to get me information. now, we seem to have lost the caller but we can figure it out. we always talk about we have to elect more women, we have to elect more women but when you go to look for in pure data that shows that having more women makes the difference, it's not really so easy. because, it's this little piece of data or that but you can't really see documents that show that. so what i have done is i took

the 15 states with the highest percentage of women legislators, and the average is i think -- i have lost my notes but patricia knows this. is 23.7. here you will see that colorado is first. it has 40%. [applause] which one of these points? thank you. this is colorado down here and you just go to all 15 states. then i quantified just those states which had the most oppressive laws on their books, their states for women. and these are the same 15 skates with the highest numbers of women legislators. i took the 15 states, which had

the best laws, or the least restrictive is how we have to say it, against women's reproductive rights. and you can see, there is a pretty good correlation in here. colorado used to be down here. we used to have colorado being very good for the people out there couldn't get these repressive laws passed just through their legislation so they started going to petitions, getting them onto the books. but this is a good correlation if you look at 15 states. and you look at the best situation for women and you see that none of them are in that. these are the least number of women registered, the bottom 15 states, and those 15 states, you

may recognize your own state and one of these kinds of things. but here are the worst, the worst states who have had the most oppressive legislation against women's reproductive rights. and you see that 11 out of 15 superimpose perfectly almost .001 correlation which means it could have only happened by accident, these two things being related. so it is clear that women make a difference. now, i want to look, and did look with you at things. these are factors as we go through -- keep in mind that are important. it is really early in the electoral cycle. many states have not had their

primaries. we don't know the final candidates are going to be for your statehouse or your senate or your congressional so there is a lot of unknown at this point. we do know a lot about the presidents. then we have to keep in mind that there are a lot of factors out there, which are influencing how elections are going to go this cycle and those really, when you look at the effective race, the effective religion, and the enthusiasm factor, which is hard to define but very important. we just heard from julie, talking about how enthusiastic the electorate was for mr. obama when he ran last time, and we heard rick talk about what a difference it made just getting those extra votes and the democrats took states that they

haven't taken four years. so, those factors are very important. we have an african-american president. we had his major component being religion, which many don't consider to be christian and shouting from the rooftops that we are christians -- a christian country etc. but those things change. but they come into play. another thing we need to understand as we go through, how the senate comes out. i have determined with multiple multiple factors, the single most important determinant of who is going to win a senate race is how the presidential race played out in that state. now, for example we have got this really tight race up in massachusetts between elizabeth warren and scott ground, who was the republican incumbent. in fact the polls work out to be

0.3, the difference between them. they both -- which is tradition in all politics. he tried to carry on about her her -- and she talking about him talking in secret about kings and queens. they both make gaffes but the truth is massachusetts is a democratic state. for him to win in that state, he will have to outperform, outperform obama's performance by probably 10 points though it's not going to be easy. i don't think mr. romney is a popular person there. but this is going to come into play in every race. who gets the president --

presidency for that state. i have not analyzed the house in detail this year. my best guess, and ellie, you should talk to her because she seems to think that we actually have a chance to take back the house. i see is picking up about 15 seats. so here, let's look at the presidential election quickly. not having the kind of equipment that my colleagues have here and in fact i'm going to steal julie's -- your beautiful slide. you know, i just copied some slides and changed, interactively change them. this is how i see the presidency and actually this is pretty much how most serious pundits at this time see it. the red of course are the republican states, the electoral votes are in them. the bluish purple are for the

democratic states at this time and those that are beige or gray or however it shows up out there, those are what are called the swings that you have heard about twice already today. they are important states that are going to make a difference. but if i take this data and only add -- into the democratic column, this is where we stand today. this could change. some of the polls and some of the studies that have led me to these decisions are within the margin of error. but this is how i see it. this race is winnable. obama has 221 electoral votes. he is going to have to have 270. this is the whole world down here, this whole bottom. this 147 votes is where we have to concentrate, and that is what

we have to look at. with all the weighted polls and how it has shaped out, the reddish ones are leaning strongly, as strong as you can be in fact, toward romney and the bluish ones and i'm not sure -- are for obama and what is absolutely it dead tie for florida and ohio. that they are going to be the key swing states. no one can predict them. you have to be careful about polls. when i looked at the polls, you will see five polls that came out that day and they all -- on winning and one says that romney is winning. it can be the reverse. so you have to go back to each poll. how is a conducted? how is the data gathered?

was it a robo-call? was a personal energy's? was at likely voter's? you know you have to go through a whole lot and i have to say just between you and i, i have had difficulty in interpreting residents vote so i have eliminated them from all of my analyses, because sometimes they have got obama up by 10 and the next day they have him down by 10. there is nothing that happened overnight in a matter was that makes a shift in how those things happen. so with that sort of -- probability, i actually calculate, out of the states, of what is left, nevada. the three that i can't come up with any definite ties to art

nevada, ohio and -- [inaudible] these are the probabilities, and they are just mathematical. and i have been attacked by it my good friend from montana who has told me over and over, john john tester can win. he leans republican and that is the human factor. people that live in that state you may know, probably know far better than i do. but what i determined is there are 72, 74 possibilities of how you can take those unknown states to create a win of enough electoral votes for obama, so we can do this. it is not set yet, but it means it's doable. i came up with about 45 as possibilities of how --

mr. romney, i keep forgetting his name. how mr. romney is going to win and it's interesting to me. we have to take weekwe, meaning the democrats, and our side, the progressives, have got to take florida or ohio. he has to take those. that is -- they're there only 48 possibilities. the most frightening thing to me as i came up with 10 possibilities that were a tie, which means it's going to go to the -- percentages. been to the senate and quickly just going through it. you know, right now the democrats have a majority. their caucus has a majority of 54 votes.

that that is to independents, the vice president and the democratic senators, the republicans are 47. unfortunately there are 33 seats this election and 21 of those belong to the democrats. you know, so it is our turn to really have to scratch it out. here is the senate as i see it at this time. the states that are washed out don't have any elections. those bluish ones are our democratic senators. i did include ohio on the last three. we just have to figure out how we put it together. and the beige colored ones are

swings, they are swing states in that we are not quite sure how they will win. now, the interest to us of course is to look up here at wisconsin. to look at wisconsin, they have not had their primary get. i can tell you with great certainty that if in the republican primary, tommy thompson emerges as the candidate, tammy baldwin is going to have a hell of a time winning. but she can beat the others and the good news is that, when the republicans had their caucus, their state caucus week ago. tommy thompson came in third. they consider him to moderate. and that is good for us because if they don't put him in, every statewide poll against all of the other candidates, tammy

baldwin comes ahead so that is one of our big concerns. but again, we would like to take florida. bill nelson is a doable guy. he is a good guy. connie mack is smarter than he ought to be. and his father was a great senator. his grandfather was a great baseball player. and because of that, you know, he is running and maybe winning. so we have just got to look at -- here is how i take the swing states. these are the 33 that are up. if i had my distance glasses i could probably see them. i think the republicans -- i go back to this map with these things. i think the republicans are definitely going -- i think we will take the next --

nevada is surely berkeley who has not been ahead in any poll. but the state is going to go for obama and that may be enough to pull her through. my colleagues again, assure me that john tester can win. he has got a fan club here. north dakota is going to be very difficult with the recent ballot initiative. it may give her the push that she needs. i think that we will take virginia. i think it will be done only if we get strong strong turnout in northern virginia. it is doable, totally doable.

and so that is important. maine is probably going to go to agnes king who is an independent he is -- [inaudible] so when you do all of this and you finish up, this is where i think we are. it is just as tight as it can be. i think that we are going to have -- my calculations give us 48 based on a whole, literally stacks of data. i think the ones that are going to make the difference and that are going to be critically important to our massachusetts, which is doable with enough work and enough push. nevada and wisconsin.

i think that no one knows which way maine is going to go. i think we will end up with a 50/50 senate and the vice presidency will make a difference. so women in the u.s. senate, no matter what happens, nothing stands to have a big improvement of the six women that are standing democrat for re-election, five of them look very good. five of them will i think the reelected. the one who is in serious trouble is mccaskill in missouri. that state is going to go republican, and it is just not -- i don't see how she can take that state. but she does have $6 million more than her opponent, which you know, in this day and time that doesn't mean much if we auctioned off senate seats.

but maybe it will be enough. and then we have six good women running. hirono in hawaii should be able to, head of case in the primary when it occurs, and i think that state will go democrat, despite the popularity of linda lingle who was the gop nominee who was the previous governor, because it's obama's home state and they will turn out. and that vote should carry either hirono or case in whoever it's going to be, which is another pickup of another woman. i can't even see what is written up their you can, so i think those are the ones. it's going to depend on whether we get busy and care about it, but we could actually end up with, instead of 17 women and

begin a senate, and up with at least 25. there are good possibilities for women. [applause] and where to target, this is always a guess. i would put projects into -- florida and ohio. in florida we need to pull obama in order to win and we need to pull bill nelson back end. he is a lovely man, but it's hard to get him on the right path. his wife keeps him on a good path. she really does, and there are eight really solid democratic women out of our 26 congressional seats running.

and they include exciting women. many of you last year met lois frank -- franklin. [applause] she has a very very good chance, very good chance to win that seat. she works like a dog and she also works us like dogs. all the floridians are clapping. she started her career as a chapter members of this is important to us. there is a woman in the balcony. valerie. valerie was the first woman police chief in orange county, an african-american woman who is dynamic among -- beyond belief and i think she can and will plan with help. now in ohio, we have got to get shared around to hold the senate. we have got to keep that state out of mr. romney's hands. because we need one of those

states. he needs both and they have a situation where out of their 16 congressional seats, there are about six really solid democratic women running, more than they have ever had. there is a large increase in women running for office, but not with the republicans. they have not made an increase, so that is how i see what is, how i dream of what will be but i'm pretty realistic in my analysis about it and if it comes down to making a guess i will guess against us. so at this point i feel very good about where we are. thank you. [applause]

>> sofa and pipa are dead. sopa and pipa are dead. that is pretty clear the effort that was undertaken there ran into a lot of controversy, a lot of miscommunication, and so i think those bills are not coming back again this year or any year for that matter. >> cochair of the congressional internet caucus and virginia republican top goodlatte on prospects for anti-piracy legislation in the next congress and other telecommunications issues tonight at 8:00 eastern on "the communicators" on c-span2. >> with the senate in recess until next week its it's booktv in primetime. each night this week here on c-span2.

now a look at the supreme court decision upholding the health care love. the court found requiring americans have health insurance or pay a tax is constitutional. legal scholars on both sides of the issue analyze the ruling at a forum hosted by georgetown university law school. [inaudible conversations]

>> good morning and welcome. and welcome. i am susan dentzer editor of chief affairs and i have the privilege of monitoring this distinguished panel today. in the words of admiral stockdale, the famous vice president of candidate of your, whom are we and ray and why are we here? we are here obviously because the very moment this decision came down yesterday from the supreme court, really with stunning implications for the legal community for constitutional law and of course for the health care system and the health care delivery overall. like the affordable care act itself, the decision amounts to a kind of national rorschach test. ..