. . . >> i would like to react to that a little bit. first of all let me start by saying i'm not speaking from a visitor being untraditional he opposed to remote searches. in fact with my colleagues steve

and susan landau and becky clark who is here we wrote a paper on you know the technical inevitability and preferably of remote searches in certain cases. i think it's really important not to be too confident about how well these tools work particularly as these go up. first of all for precisely the same reason that you are able to do room white -- remote exploitation of the computers, software is hard. software is so hard that in general we don't know how to build it correctly and software with security implications is particularly hard, particularly fragile again particularly when the configuration you may not

actually be fully aware of. and so i think subsix, the confidence that these tools are actually working as intended has to be understood in the context of this is not just a hard problem but it is the fundamental problem of computer science which is that we don't know how to dove in general reliable software at scale. and so you were working an absolutely treacherous territory when you do this and what that means is first of all the only thing we know that works is relentless supervision. in that case of the legal system a discovery process where the defense gets to apply would certainly be something that would e. not just nice but probably is until and other

kinds of relentless scrutiny. the other problem is that when a drug is authorizing this they are authorizing tools that they very like we don't fully understand the scope and the rest of largely new territory. authorizes a search warrant physically breaking into a house with a no knock warrant, that's pretty well understood but frankly that isn't what can go wrong. it's very unlikely that a warrant for specific houses going to end up searching for an entire neighborhood or city. in the case of a remote computer search both the targeting and the scope of what is collected and the potential for collateral damage are really much more

difficult. it's easy to say what the tool is intended to do, it's harder to say what the tools actually do. this is very difficult technical territory we are in. >> kevin we need a legislative framework for these searches and how would you account for the technical difficulties in such legislation? >> ultimately absolutely we need a legislative routine to govern us just like we have for wiretaps and it raises all the same issues the wiretaps raise along with a lot of unique ones. i'm not certain how best to address the issue minimizing the technical risks. certainly i appreciate whatever internal measures the doj is engaging in to try to quality assure that but that is just one branch of our government. we need the courts to engage

because they often don't understand what they are proving and there are some interesting crank transgressor one of the pages and that is, per the judge are struggling to understand when you send instructions to the computer are you calling it, what do you mean by instructions on the computer? they are not fairly installing new software on the computer that is going to do these operations and that's a problem. i think i take rich's point about the fourth amendment as the rule that i liken this do we have a problem of the surveillance system both in terms of law enforcement and foreign intelligence being so secretive that effectively prevents us from making good policy. one of the good example is in 2005 when they finally learned thanks to one magistrate to

publish an amendment that the government has been doing live tracking for over a decade without warrants and using the statutory reserve for records. there weren't public instructions about this. we had no idea what was happening and we see the same kind of ratcheting up phenomenon i wrote a similar article and applied the ideas to law enforcement called only the doj knows so to hear just trust the fourth amendment and we in the courts are going to figure out when as i said they have been doing this for a decade and a half and we are only now just talking about it rings kind of hollow. i also want to talk a bit about the botnet provision. one i think it's a misnomer. what it says if we are investigating a computer fraud and abuse act of crime and the

computers want to search five or more districts than we can go to any of those districts. it's not limited to botnet. it could be used for example as an alternative to busting in and grabbing the computers of a suspected hacker. hey guys let's do it from her desktop and ramarley search the computer before we announce ourselves by busting in and taking the computer but also in terms of the botnet's we are talking essentially hundreds of thousands of people. who innocent people who appear to have been authorized and not authorized in the botnet. those are a lot of instant people who say it's not a big deal if someone's computer is destroyed there for that individual it's a big deal. >> hopefully would not explode

or anything. there some precedence for exploding. >> it raises the question in how do we handle those people because those people are likely never to learn. my refrigerator is part of the botnet and in the process the government gets a lot of data about my science. you think about a more sensitive item if you would like. they are never going to be prosecuted. i can't think of any way to notify that person. >> that was my question. hacking, mission creep, notification lots of questions for you. >> i guess if i could respond to this question about one very of port -- important addition. i'm concerned i've heard richard

as well as other people publicly say that this will help them go after and shutdown botnets with the intent to disrupt the functioning of the computer in some way and i don't see how rule 41 authorized that beyond a search the search and seizure data that really worries me. if we are turning a warrant into a stick that we can damage stuff with that's a new development. >> i'm not sure i can answer all the points but i want to make a couple of points. first of all on the question of secrecy and whether this could be done in the shadows and we never know about it actually that's one of the strengths of having to be part of rule 41, it's going to make sure that these things are brought to justice and approved and that there will be clarity when these comes -- when these things come to court. he will be suppression motions and affect the core system is pretty good at trying to figure out what the answer to these questions are. indeed right now as a result of the investigation of the core

hidden web site on the tour network that involve the exchange of child sexual exploitation by 100,000 users the investigation resulted in a remote search. the what i can say is that there are hundreds of these cases now that are going to be brought across the country. i think we are going to see courts looking at this question. this is exactly what we would want as far as parenting. on the question of whether the exact details of the exploit should be disclosed as an incentive that's a very interesting question that we will see in the litigation around the question of discovery. how much does the defendant need to know and of course the defendant in many cases have cost additional rights to defend themselves and material that would help them. of course balanced against that on the other side is he discloses vulnerability or method of transferring the

computer will no longer be useful. that is it will be outed and systems will no longer be useful for the purpose of law enforcement activity. it's an interesting question because in many cases the method by which it's not relative to the defense. so in many ways it's kind of like asking what is the brand of the sledgehammer used to not down the front door. the fourth question is you are knocking on his front door yes and was that proper and reasonable? does it really matter how that entry was made. that's going to be one of the interesting questions that the court would wrestle with. it doesn't material help the event in some way or the government needs to have understand this doctrine secrecy

about particulars tool techniques. is that going to be outweighed in the defendant's demands for disclosure? there were more here but i think i will stop there. >> this brings up an interesting point. we are talking about disclosing to the defense of vulnerability used but if you pull that out a little bit one of the major issues is your disclosing to the provider that person control of the software the vulnerability that has been used. because the sledgehammer in the front door, if they had a sledgehammer that knocked on the front door and 50 million people have that same front door and use it every single day should you tell the front door manufacture? is their key that can open the front door is a better example. if somebody else find that they can open all of them as well.

should all of the innocent people using the front door not know that they have a vulnerability in their front door that needs to be fixed or should that person be able to fix that? there is a processing government it was reinvigorated is the term that was used after the hard lead bug was discovered because there was a lot of speculation that the nsa may have known about the bug and not disclose the cause they were taking advantage of it. so the white house started this from the vulnerability equity process. it is unclear to the extent it's being used for all of the bugs that are out there. they say it's being used but we know for example that the bugs used in apple case in san bernardino was not put through this process because they never took possession of it. it's supposed to cover every time the government discovers or comes into possession of a vulnerability. this one looks like a black box

and they never had it so they put it through the process. the first panel was talking a lot about the uncertainty of the policies in place right now as opposed to the laws and whether not they will continue into the next administration. in addition to the fact that it's unclear how often it's used the we don't know the stated that come january of that process will continue. >> i just want to point out we have sort of conflated two issues here when we talked about closure. first is disclosure when we use the sledgehammer and allergy that might be a nice simplifying analogy but unfortunately it's floss is over when the important parts which is we don't know that it's actually only a sledgehammer. we know it's being used with the intention of using it as a specific kind of tool but we don't know what else it does.

the only way we have any chance of being sure of what is behavior is and even there it's imperfect is sort of relentless scrutiny and examination. the first problem is we are not actually sure it's only a sledgehammer. >> be interested in knowing whether or not it's just a sledgehammer is for greater cyber security for the public. >> that part might be relevant. it's relative to the defendant because the question of does it disclose more data or is it actually only limited to what was in the war and? you can really only know that by looking at the tool itself. you can also only know if there might have been other damage done to the computer that perhaps did result in is going to the government but might have

exposed information or damage to the computer and some other way. the only way we can know that is to examine the tools in the context that it was used preferably by an adversary process that is given sufficient recourse and the second problem and this is the much broader public problem is that these tools generally involve exploiting vulnerabilities that could be used not just by the government or lawful warrants and lawful searches but also by criminal nationstates and so on. c are you talking about is your days here? >> sometimes there is zero days but probably zero days are the most prominent but vulnerabilities that no one knows about that have been discovered for the first time by the people using the tool but there might evolve abilities

that are known and applied that impacts the lifetime of vulnerabilities tends to have a fairly long tail for their patch even after they have been disclosed. there is a tool that the government is using based on a flaw that isn't known to the vendor or was it known to the vendor to be exploitable remotely. there is the risk that someone else will discover it and use it for very bad purposes, potentially against the government itself. we don't really know. we don't really know very much about how often that happens because these tools are shrouded in so much patronage.

>> that's one area where greater transparency is essential. >> that's right in this as an example of something that requires very subtle technical and very subtle policy judgment that really can only be achieved by more transparency. >> with that be a policy change or legislative change? >> speaking generally we want congress to regulate enforcing a level of transparency. it's very least that much what we have in the wiretapping which also would include for that matter actual data about how often this is done and how many people in impacts which right now we have no clue. [inaudible] >> we are not kisleyack transitional period and it's hard to protect -- predict what

administration would do. what i can say is you should look at the blogpost from michael danielsen security adviser from a couple of years ago and what he says is that he basically lays out a solid argument. everyone across the country including the government relies on the computer network. disclosing vulnerabilities is usually going to make sense because that will provide protection and security for everyone however there are no trade-offs of their going to be times where there's a need for this tool this undisclosed vulnerability in the two solve some intelligence problems and you can imagine all the kinds of things that come into that category public safety and child sexual assault. soap doping a stockpile of vulnerabilities is going to harm our general security is not a good policy decision but is not

the same thing as saying we should never do it and therefore that's why we have ulnar abilities in the equity process or vep and it doesn't create any hard or fast rules but it does lay out the kind of criteria that's going to be considered and frankly make sure that those are the kinds of considerations and how significant is the risk and is it affect their critical infrastructure? is attachable isn't likely to be discovered by someone else? those are the kinds of questions that we need to ask and i think that's a pretty good set of questions that you would want the executive branch to be making decisions and doing it in an appropriate and robust way. >> do you at doj or fbi submittal the vulnerability's used to the steps come into the

process? >> depending on the scope of how far i can go unclear about making public but beyond that i'm not entitled to talk further about what's going on behind the scenes. >> no one will know. [laughter] >> this process itself is newly invigorated posts snowdon transparency reforms. do you think that this is another, this is something that ought to be codified and put into statute? >> sure. >> i think that's exact way the kind of conversation we want to have including hearings which we haven't had. i don't want to say this is how you would necessarily draft a dep statute tickets we still don't have the right deal of information about it. we appreciate the transparency

that the obama administration has engaged in to tell us about it and give us some vague idea of the criteria they are using but we don't really know who sits at a table, how often they meet, the number of phones that have gone through the process. they have thrown around a fake number of 90% ultimately is disclose that out of how many, how long were those held onto before they were disclosed? where they exploited before they were disclosed, questions of that nature. we really don't have any of that kind of information and so i think the first appear in deciding how to codify this process i think some version of this should be in law to protect this. i think the first step would be actually having hearings about it and having engaging congress in looking at it. >> i also pointed out this is a great example where the devil is entirely in the details. we can all agree on very high

level principles but no one would disagree. on one end of the spectrum and the other end of the spectrum and that's almost none of the cases. there is this large middle ground and making sensible judgments about that middle ground is going to require enormous both technical and policy expertise. so this is a non-trivial task that whoever the outfitter on the vulnerability equities process are, they have to be both technical and policy experts with access a very steep set of details about what's going on. this is not something that can simply be --. >> the thing is almost back where we started now the

congress has allowed the rule 41 chances to go into effect without actually stop them there are several measures introduced to postpone those changes just to give them time to address what they should do in light of government hacking and i believe senator corcoran is the one who blocked all of those postponements from going into effect. now they are going to enter 2017 and it should be at the top of their agenda. all the issues we have talked about here at the vulnerability process, the potential title iii were rules for government hacking, what transparency measures need to be in place. congress has put the yoenis back on themselves that they need to be considered is first and foremost as they enter into the new year because this activity now is basically they have allow this argument by not acting. they have said that this is okay and i'm not sure a lot of them

would agree with that but that's going to be the argument in court now. >> matt talked about the need for judges to have greater technical skill in understanding the cases they are ruling in. do you think that there is a need for special technical and judicial -- in the courts have another text -- technical expert on the bench? >> i think i wouldn't say how to actually structure it but i would say that almost all parts of it for choir a significant infusion of technical expertise at almost every level. it's not currently they are routinely. certainly in the case of a judge who is being asked if i --

signed a warrant that isn't fully understood, there is room for judges to ask questions to do things like appoint special masters. i understand there's a mechanism for doing this and i'm not going to see be prescriptive about what we should do except to say that we urgently need to do quite a bit or this could have far-reaching unintended consequences. >> i'm curious, judges have a bunch of young people working for them every year to two years, these law clerks. it would be great if they started favoring hiring long -- young law students who have that back out or go ahead and hire some nonlawyers you know know who serve as clerks simply to assist with technical cases. i think that might be one of the easiest injection points to

inject into the bench. >> they are starting to set up joint program to cybersecurity in computer science departments in law. >> i would agree absolutely to the idea there should be greater technical understanding in our court system. i would moderate that a little bit by saying the court, said in a problem for them. they have been dealing with technical issues extensively. we have all sorts of other kinds of suits that require technical understanding. my experience with federal judges is that they are not training them and they don't understand something they won't ask questions and get to the bottom of something that i want to undersell the idea that courts are actually pretty good at figuring out technical lessons of getting special resources or briefings or

whatever it is, testimony and having to make the decision on these things. that may respond to the congress should act immediately question. if the alternative to act teen with respect to whether we need new rules for searches is to say well we have a bunch of safeguards and greater clarity that's going to be coming. maybe we should wait and see whether there are courts that are able to deal with these questions and they are able to come to light in that sort of question. we are going to see a lot of activity in many of these cases that are coming up and of course from the department's perspective we are good partners in figuring these things out and being clear about what we are doing when we argue case under rule 41. it's an interesting question and definitely one that will be interesting to see what the next congress in the next administration wants to do.

>> in terms of unintended consequences i think there have been instances and cases where the law enforcement agency in fact in 2013 the fbi change something like 300 individualized warrants to target specific users of an anonymous e-mail server and the idea there was to infect the computers of just these users are not all the innocent users of tour of mail but it according to some press reports apparently the way in which the fbi deployed the software ended up infecting everybody who legged into the actual tour mail homepage. so it seems it may not have been the intended consequence but it did end up infecting computers.

sometimes there are unintended consequences that arise. without commenting on the specifics, in general. >> like i said before no activity in human life should be free of all chance of error or whatever although i would dispute the point that there has been some systemic problem or greater issue going on. i think we have actually done a pretty good job so far in making sure the tools act and the situation where you know a particular e-mail account and you set said that this remote search to affect only that person that's actually a targeted search and not a broader type. >> have been on that approach to actually work and you have used individualized warrants? >> absolutely, yes.

there are situations where that is going to be a more common case not a mass search that is attracted a lot of interest but if you got an individual who is threatening to kill a government official and there's good reason to believe that it's real and there's a short time deadline to to to figure out who the individual as you can imagine law enforcement is going to be trying to find a way to justify that individual was going to be targeted and you'll have that probable cause to do that. obviously will be case-by-case and they have to have probable cause and you have to judges. if we mess it up we can get sued and if it's overbroad things will get worked out in the court so i really think we do have a strong court system and a strong system that will be applied to

the rule 41 warrant situation like it has for the last 200 years. >> i'm curious and maybe can't say this but were all these people notified that they were search such as they could challenge the process? >> so that's another value of the rule 41 process. it's required that the person be notified. of course it doesn't require completely and endlessly exhausted efforts. you've got to do your very best and it may very and will probably have to be run by the judge but yes in the cases for examples where people are using a child pornography web site to exchange images most often that's going to be followed up with a search of the persons residents to obtain the offense from their home that will be used in a trial to come. they are obviously going to be a notify.

rule 41 requires part of the transparency. we don't want is to have it done outside the court system nodded within the review that judges are not within the transparency protected process we have developed in the courts. >> is one quick reaction. you mentioned that you think you are doing a pretty good job of making these rules robust and i believe that's true but i just want to point out microsoft and apple and lennox and android and adobe and so on are also doing a pretty good job of securing the platform and we are in a terrible cybersecurity mess. the pretty good job that is being done is unfortunately still not so great. software is hard and i think it's really a mistake to get too

overconfident that these terribly imperfect software development processes are always going to work the way we want them to. i'm not suggesting we should be overconfident. think we should be very careful and that we do with carefully to invalidate the sources this reason that the question on whether you can create a truly secure piece of software that novel that anyone in obviously is a big problem with the hackers that are able to break it all the time. given the government's activity on the hackers cited the situation we don't need to be able to secure it perfectly. you need to use one particular vulnerability that will get to the narrow piece or provision that we need. >> i just want to play this tour mail example. this was basically a bunch of people who i would say suffered a fourth amendment level search and seizure of data.

ironically because they were using a service to protect their privacy but basically everyone who is using the service at the time. that may have been an unintended consequence which is worrisome especially when you think of the other scenarios where unintentional consequences might impact hundreds or thousands of people. there's also perhaps even more worrisome possibility that the doj after getting those 300 individualized warrants decided we think how we are technically implementing this is the best and most reasonable way to do it and we will incidentally be impacting these people and based on likely some legal memo in the doj that has never been briefed in front of a court that has not been tested. that goes back to my theme of this worrisome ratcheting up of

the authority they stodden sometimes extreme legal theories that haven't been put to any test and they may not be put to any test unless and until there's a criminal case. >> some of that doesn't actually make sense. my understanding is the government was now unable to actually identify the 300 individuals that they wanted. it basically meant that ever pointless which to me doesn't make any sense. >> would a good question for them to answer because i don't want to talk about the need details are released into the defendants, kind of car do you have -- it's kind of hard to have that conversation. >> it's an ongoing case. there is continuing investigations and we have a firm and reasonable policy that

we can't talk about going on for fear that we are going to jeopardize the investigation or of the other things that are going on. so i'm not indicating malintent. i'm just pointing out the problem that it raises we can't discuss and get they will be notified because it requires it and these are the speculations i news reporting of people who are dreaming up ideas of bout what might have happened. >> all the users will be notified as well. >> it requires they notify the owners of the property. are you talking about the amendment's? >> the amendment required reasonable efforts in certain circumstances yes but if we are able to identify an individual that person will get noticed. it's possible that it may not be

a tool that works for example. we are not going to notify anybody and their sauce sorts of permutations here but in any case rule 41 takes into account that requires the kind of notice that is reasonable and people will get notice of being searched. the police get it wrong and they search the wrong house. they are across the street searching for more they were supposed to be. they will get notice it even though was unintended. >> i would like to switch over for a minute now to encryption and matt raised a thing that you say you advocated along with susan landau which is one alternative to the decryption -- decryption mandates to allow the

government with a warrant to essentially hack into our create an exploit that would allow them to remotely access a lost phone. tell us why you think that's a good idea and i'd like to get your response to that. >> i think we have been hearing a lot about the ongoing problem and the solution or a centerpiece of the solutions that have been offered by the government have involved some sort of built-in back door or design mandate to allow for lawful access. that's unfortunately it is likely to make our currently weak fragile infrastructure much weaker and much more fragile

than tools like cryptography or the use of good security practices or create centralized points of failure where it needs to exist so there's a compelling but reason to very strongly opposed any design mandates of the kinds that are being advocated for it. that said as we can see by the expansion of rule 41 in many and i would argue the majority of cases search of the endpoint by exploitation of vulnerabilities and so forth is a viable alternative. we are seeing it done and it's happening. the legal rule for that is unclear. the rule 41 came to a codified

place where we are seeing it addressed and i think it really does the tibia dress by congress. i think it's simply the case that this has been done for a while. it's going to scale up and we need to describe in law and policy with the rules for that going forward are going to be. >> you go ahead. i will follow. >> i think there a lot of people who want to say go government hacking but also if there is going to be a continuing increase in the appointment of strong encryption tools which we are a fan of and there is not some sort of mandate that data be accessible by the government which we are not a fan of, there

will be more government hacking whether we like it or not and the question is what are the rules for that activity? i just want to fly to concerned that brings together both of these issues and highlights the need for amongst others congressional action which is how they might implement that government hacking in a way that would drastically be a backdoor and hurt all of our individual mental health and that is subverting the software update systems through which we received all of our security up dates from the companies. this is an idea that is occasionally talked around as a potential way to deliver malware to access encrypted data and i think it would be an incredibly dangerous thing yet i also think our current technical provisions around surveillance could be read potentially by a court to

allow the sort of thing. why is this a bad idea? we are basically knit digital public health crisis. we are facing many grave ills. the medicine that we get for that, the vaccines that we receive come to the secure update channels from the company. if and when it becomes public and the government has subverted that trusted channel to decrease our privacy and security we will have a lot or people avoiding those andesite people who aren't fact they began against diseases. by the making that choice they are making us less safe as they become hosts are the things that might affect us. this is a huge risk and it's a path we definitely don't want to take for what it's worth joy has written about this point as well as several others but i think it's important. >> i just want to pull it back

to the international perspective on this a little bit because we have to notice the internet does not stop at the atlantic or the pacific oceans on either side of the united states. it's actually used globally so the u.s. rhetoric around whether or not we are going to undermine encryption or whether or not that's accessible has provided a lot of wiggle room for other countries to pass laws that implement policies that to undermine encryption either give them authority to outlaw into it and encryption from being used by companies. there are a lot of them that require end-users in specific countries others that element while at the same time we are talking about government hacking without having rules for it. we are seeing other countries also pick up on that and in the uk for example we just had that

law that formalizes uk government hacking authority that might allow the uk government from an object to have reached to do exactly what kevin was just saying which is try to force companies to implement backdoor security up dates. by not at teen in an outfront we to protect privacy in law affirmatively we are not only allowing conversations to wither and die in the u.s. but we are allowing great room for security to be lowered across-the-board outside of the country. those effects are going to be felt in the united states without question. >> do you want to weigh in on back that? i know you are concerned about the international climate. >> certainly speaking to the international question this idea that u.s. policy which is

equivocal on the subject, letting other countries do things that some of them may not like i think is missing the mark other countries face the same national security problems we do and i suspect they are going to try to address those problems as best they can in their own political system regardless of our positions on these things but certainly the middle road we have seem to have taken over the last few years. let me address a couple of other things. i think as far as the going dark problem i think i agree with the comments that have been made so far. i think it is inevitably going to be part of what the government will end up doing and certainly when there's an opportunity in a case where tool becomes available that can be used as a warrant it's going to

be used. it should also be clear it is by no means a 100% solution to that problem and for a couple of different reasons. investigation on the law enforcement side needs to be targeted timely and calculated through dismissible evidence and each of those three things can have difficulties. targeted the other particular offender that you made believe they'd be committing some serious crime he can't be a perfect solution if you are lucky enough to have that person be using an operating system that happens to have a vulnerability that you happen to have it tool to address. it's going to be a catch me if you can situation and also it's timely. is that the level now or do we have to wait a long time as in months and months are frankly in the case of hackers trying to break into something they generally do over period of time expending a lot of energy doing that may not be acceptable in

the context of law enforcement in the future. let me offer one other counterpoint here. matt said the comment thing that we have heard from a number of people about how creating a mandate or a backdoor solution or whatever word you want to use for that would have grievous security harm to the average person. i would encourage you to ask for the evidence on that and probe the question. if you look at the way that companies and agencies and individuals pay these end-to-end solutions or the solutions that don't allow there to be any interference in the middle are not the norm and if you look at 4 example the department of justice i'm extremely concerned about our security.

there's an app on the background of my phone that lets government have access to the device when needed and yet that's exactly what the rome was in the san bernardino case. they are actually. worried about encryption because when you have phishing schemes going after networks is harder to intercept those and lock them at the gateway. communication is encrypted and an on the availability of individuals and then we have to ask questions like why is this that gmail which doesn't use that kind of encryption that makes it inaccessible to the provider? that's a question in the way you want to characterize these things and why are we not saying to gmail how dare you access your customers e-mails in order to sell advertising to them or put another way if we are okay

with gmail doing that why are we not okay having security benefits and aren't those just as important? i would encourage you to ask this question, what is the security benefit here and is that benefit in fact worth it when it comes to public safety and the harm that is resulting from the end and am now a full turned over to the over here. >> we have a little time for questions. >> i will just say i find it shocking in an age where we are seeing former secretary of state a major political party hacked her e-mails spilling out everywhere, that it's hard to recognize what the security value of using a more secure option is. i think we should he, there are

a lot of people especially in politics in hollywood right now that are starting to use e-mail less because it is riskier. no one is saying gmail is super insecure but it's certainly less secure than an end-to-end solution we actually need to be promoting the spread of that tech knowledge he rather than trying to dampen its considering just how the cybersecurity situation is. c counterpoint, how was that continued? was a three phishing? that's a situation where anti-and encryption becomes important. >> we could go for another hour. let's go to questions. we are going to bring microphones around. identify yourself and ask your question in the form of a question. thank you. >> kerry jeffries.

i thought for a second on what was being -- [inaudible] who gets royalties every time it's used. it was released by the government under the clinton administration. it's all done through the -- out of california which went and took him to switzerland. let's remember where this all started. >> so what is your question? >> my question is why are you talking about the correct origins of i can and to her? these dark things to just not popped out. government had access to them. >> e-mails saying maybe we shouldn't be using this stuff. >> i will briefly respond. i'm not sure out i can is relevant that in terms of tour its open software and i don't

believe anyone who receives a royalty. the its origin was want to protect our own spies. they need protection too and what was heavily funded by our own state department to help defend human rights outside of the u.s. for the rights of dissidents and others since all i would say is if it's good for them it's good for us to. if the u.s. supports people outside of the united states having these tools they should support people inside the united states using these tools. >> i assure you if there were royalties, there are no royalties involved in the software and so on. i should also point out that one of the reasons that the floor is open everybody to use is that it's simply not possible to

protect our own government employees who are using it without the cover of the general public using it. anonymity loves company in that sense. that is simply part of how the technology has to work. >> i think there are people though out there who are asking the question hasn't outlived its benefits or the cost and as i mentioned investigation of sites where there is absolute rampant criminal activity going on. the question to ask is how does that balance today? >> there's a woman in a green sweater in the back. >> can you speak directly into the mic? >> i'm with the national

association of criminal defense lawyers. i think there's an huge missing piece of the conversation when we talk about the process that is noted and how it works. fundamentally the state's ability to car straight someone to price them of their liberty so when it becomes a question of notice of protecting i think the government often has a blanket comparison like it's a sledgehammer as if it's one uniform thing that only operates one way. i want to get to the point when you talk about using these techniques to break into the computers to investigate people and prosecute them and potentially deprive them of their liberty it's extremely important. the government knows full well there are many ways in which that can be done in non-open courts not in release of information are prone to give the defense the opportunity to examine how the computer was broken into in search and what were the parameters in what might have operated differently. so i would like someone to address the peace to

differentiate the piece of what a traditional search warrant does come with the ability to challenges which frankly is quite limited and how this technology is being used changes that considerably. it is not a place we can go and look and search my home and hit trees three places. i would love for someone to address that particularly from the psychology piece but also from the rights of the accused in a criminal case who do have evidence against them. >> i think that's been discussed briefly before but i agree that the courts have a lot of tools that are useful in trying to sort out these questions and they are going to do that in due course. there is however a long-standing rule for decades and decades that there are certain times when there is a technology or something that has particular investigative value that would lose its investigative value. take for example how a

particular recording device is shaped. it is a course useful to the future mobsters to know how we are concealing our recording devices. it's generally not that useful to the defense and no the exact shape of the device or the caller or shape of the battery. that it happens in certain ways critical. turning over all the relevant information makes sense but to know the exact shape of the device not so much. courts have traditionally tried to balance these and i expect that is the kind of debate that will happen as we go forward. if there's a situation where it is indeed needed for a defendant to be able to evaluating but the search was then yes that's probably something that would need to be turned over. if it doesn't have any relevance what we really need to know is

when it was urged what was searched and what was the scope and those questions and courts are likely to look at that and we'll say this technical specification doesn't need to be disclosed. >> let me add one quick point to that. the lifetime of these tools is much much shorter than the light time of our recording device. it's entirely impossible particularly if it scales up from the timeframe of a criminal prosecution by the time the disclosure would take place those is goelzer long on the way to being obsolete. >> it's time to have a bite of lunch but if you will join us upstairs we will have lunch at noon and tell about 1:10. i think c-span is here but if those at home would like to see the lunch cam civil rights

legend wade henderson you can catch the livestream. please join me in thanking our panel. [applause] [inaudible conversations] [inaudible conversations]

.. >> >> the world, as we speak by

the syrian regime and the russian ally is are being held with the deliberate surrounding of starving innocent civilians with relentless targeting and humanitarian workers and medical personnel with entire neighborhoods reduced to rubble and dust. there are continuing reports of civilians being executed all violation of international law. the responsibility for this brutality lies in one place along with the regime allies roszak and i ran with the atrocities that rather hands me although what needs to happen has said impartial international force to of coordinate we orderly evacuation for it false

humanitarian aid to continue to be the largest humanitarian to the syrian people and our broader ceasefire for a political rather than military solution. >>

[applause] [inaudible conversations] in an. >> good evening i sv here with my co-author banks for

joining as here and watching us on c street -- c-span and our live stream for the last event of the year. sean spicer the chief strategist for the rnc. [applause] we are very excited. had a fascinating career in washington even in middle of all the big decisions donald trump is making. before we get started a special thank-you to bank of america wants to make day have been untrue partner in this series baking these conversations available so we think them for their support.

and now sean spicer. [applause] >> would you like to start or should we clacks. >>. >> it is an important defense this seven days from festivus but more importantly is this your birthday so what to make sure you were appropriately knowledge to give the stuff that "politico" knu so first is a republican bag every day it will remind you of who is in charge. [laughter]

when -- it can be political i have a couple of stickers something for your car laugh laugh come and a very nice tie that you can wear. >> it is another republican tie. [laughter] >> i do not wear a tie right now. >> with this is one that you can and it is something very special and very dear so i hope you really enjoy a that you must wear this.

>> make a "politico" great again laugh laugh. >> for the record i do believe that "politico" his great again. >> before we get started. >> so take it away. >> we would like to ask a question or a comment of how we are doing over the next 45 minutes we will put them here on stage and we will get started. >> day think the worst kept secret in town to have some modest disagreements with

"politico" such the beginning of the conversation can't we just get along? >> i am down but in all seriousness vice speak on behalf of of president-elect that we respect their role of press plays in a democracy. i don't think every media is battered every reporter is bad but they do well, the elevation on the sleeve working hard and i do get personal credit for that. but i do have a problem with how "politico" has engaged on our side. it is tweet happy and click

date and avoid a fax. for example, just today. >> give every they could flip against robins. in erie it can floodway and go to mars this is not journalism this is not as serious thought about what is going on in the electorate and i think that yesterday's another person would tweed out something folder which i will not repeat of the stage but there was no story about their own employee to write and say stuff about the president-elect of the united states it was disgusting and reprehensible

and unacceptable. >> this person was reprimanded and is no longer working. >> but if a republican j. walking is front page story at the middle school to say something appropriately rnc gets a phone call how do we respond to they speak for the entire party? should they step down? [laughter] i think if you engage in that with of level of responsibility that you have to haul her own people accountable because it is behavior that is unacceptable you have reporters so use them so in my capacity canning gauge with reporters and sometimes we hear of the are wrong side and we should be called

out but there is not one story that says one thing not a single headline and if you look at the fact the rnc spent $175 million of data to put together the best operation political history and everything is a story of how we come up short or what we did wrong then you have to give credit or a least cover any more responsible way. [applause] [cheers and applause] >> fair enough. similarly i think as republicans make mistakes editing reporters make mistakes. >> but i'd think it is the

news organization responsibility to take responsibility and to correct that. >> one of the things important to me is put uh genie back in the ball. >>. >> but i think it is tweet first and fix later there are times when news is breaking in baguette that. eyelids in this world long enough you are competing in baghdad did. vary enough but when you get a wrong you cannot go back to take away what people have seen how many times is something shared incorrectly

on friday there is a story and then from the tech meeting tuesday that i don't have the power to disinvited leading from the president-elect but i don't and they were never invited and i was never asked by "politico" if that happened but i cannot put the story back in the bottle. once it is out there it is out there it is unfortunate to be provocative is not journalism. >> understood. >> i can keep going. [laughter] >> we have exactly 35 minutes left and things that i do want to talk about.

so let's talk about what it is in the news recently a few hours ago president obama gave his pre-hawaii press conference and he said i think it was reported the cia and fbi director of national intelligence are in unison. deal think that is true? >> i am not up vaughan this information but there are two different things. i changed my g mail six times in the last six months. so do i think there are hackers out there? sure. to foreign governments tried to go on to the u.s. sites? absolutely. china. russia. we do with it and they do with the problem i have with

this story and the narrative about russia is number one, this would not have happened if hillary clinton did not have her own server per car she did not follow protocol. but that is what is in discussion. but the stuff that they wrote was it appropriate. did basically say and not excusing hacking there is multiple pieces to the story but they roche what they wrote. but that being said then dnc security measures if people are mad in the democratic world.

>> so what do you know, ? so we got a call last friday night from the washington post and "new york times." and based on forces of the world because both institutions were hacked only allowed information solely been did not get backed so if we did it get hacked that allow promises wrong route. so we worked with the washington post they said

ferri enough but "the new york times" went ahead with it now reports from "wall street journal" and abc that our systems were not attacked. >> this is the second point is that people throw around the two terms. hacking is penetrating the system to get the data and you are successful pro being is just a fishing exercise with the faulty e-mail we want to urge e-mail password . what did your pin number? and when you open those that is a successful fishing attempt that is how they get in and that is one of the ways they could hack into the system but probing is just ways to get in like

knocking on a door or window to see if it is open. they tried but they did not enter but with the dnc did found an open window. but our point is we were told the conclusion was based on those facts. so if they are not true that the conclusion must be faulty. the vendor 17th lead dnc went to the house intelligence committee to make very clear open testimony the connection to russia the fact that he said in open testimony that russia was behind the

wikileaks gni open testimony stating that but yet why don't you just accept this as fact? why is that testimony blacks. >> because they concluded that it was. >> there is a difference between them probing and affecting the outcome and there's zero evidence affected the outcome. rnc was called wheeler briefing with them they said before the election in that with the dnc to be very clear there is no way you could pack voting machines to have any effect on the outcome the voting machines are so disparate paper about this year or machines here there's no way you can hack and day were asking for our assistance so we could help reassure the american public we believe in the integrity of the voting system year right after john pest day --

protest the trend of electors to change their vote calling into question the election is ironic they are doing what they accused us of and now that is the media. [applause] >> slow to be more forward-looking with the press operation but that looks like under donald trump the briefings the tunnel that needs to be daily or on camera but what model are you looking at if you make comments like that correct. >> that was worse in terms of having them on camera that was a mistake and he's to be reexamined. it isn't a question that this miller wrote not happen

but in washington too often to say this is how is has always been done so keep going so there is a healthy dialogue to say what would make these more informative? let is of better tool? maybe they come out similar. maybe they are more accessible maybe the members of the public could ask the white house press office something before too long we have of very stale operation all the mainstream media gets the question of the broadcast networks great. but what about the conservative media? what about those top blockers? there is a need to rallies have that conversation to discuss that what makes things more open greg said she talked about

transparency let's have a discussion. >> listen your front-row correct. >> it is not my front row. i don't know. bv is a rotating pool. but laugh laugh but all i am saying is there should be a conversation it should not just be this is the status quo keep going. that is the problem with a lot in this town in his cowboys happens so what donald trump represents is get it done and to question the status quo end business as usual to make real change . >> so to talk about business as usual we have been there for the christmas party do

you think he will keep those long held traditions like the correspondents' dinner greg. >> have to be honest if you think that is what we are focused on is not. but if you look at the people that he has put together a cabinet that is the focus. theater meeting there will was a guy focused on getting things done not worry if we change the color of of a drapes are what parties to put on. he wants to offer real change. say what you want our focus is not who is attending the gridiron. >> but the communication shops will be defined different because donald trump has that ability to be remarkably successful at communicating.

so what do you think? in the next four years or six months, how do you envision the role now of that he is successful quest. >> 17.6 million people on twitter tens of millions on facebook and instagram. but i would argue no one else is the direct way that anybody has seen if is a tool to communicate directly with the community -- with the american people. >> again it is not the one stop shop. but is a powerful tool and you can use that as an arsenal. maybe there are new and

evolving technologies he could utilize whether it's instagram or twitter to bypass the press but to say it is not a single avenue to communicate with the american people. >> what is the most effective tweet? >> today? [laughter] that is a great question. i have not analyzed them but if you look at it objectively at the end of the day he talks about a company about their policies from thanksgiving to christmas now can breathe a sigh of relief and he did that. the pressure that he put on them to understand how or important it was was great. he means what he says and i noticed this the other day, aside from the people

on his payroll, idol think anybody in that room voted for him but when they walked out, they were unbelievably impressed with his desire to get things done cannot take bureaucracy for the answer. >> food you think it covers trump and fairly there are seven new have written bids stories from time to time i have seen stuff from the "wall street journal", of blumberg, the did job to

write objectives stories. pliocene good package is here and there but it is just a question of fairness we crown source of question tonight when the things they were interested is now they can wander around your go to the press shop but there is talk is that what you're even thinking about quick. >> that is premature to talk about at aspect because that don't have that authority to have that discussion one. that would be highly inappropriate for me. >> but the access of that role? >> sure. house you define access

prices it to walk into the press secretary office all the time with access to a workspace? i know the obama administration has done that before. but i am not trying to be corny but to get the phone calls returned talk about access want those who have dealt with this last couple of years as a correspondent who will only show up during the key things. is there a better way to have an open dialogue? but one of the things that is important is not just the media. maybe inviting more people from up public to be involved maybe a ma or facebook live town hall or twitter town hall to involve the public not just to say the only people that can ask the white house are members of the opera score.

>> is that important? to make interaction is hell in part of a democracy. >> q have been in washington d.c. with a lot of press secretaries and in the bush white house and the obama warehouse. i read -- are reflation was aggressive. he was aggressive or a jay kearney was laid-back. your boss rendered his opinion. [laughter] so talk us through the effective strategy for somebody in that role. >> one of the things that there is the west wing what a press secretary does she stand at a podium 12 hours and go on television at

night. ninety-five% is off-camera helping to facilitate to get the answers that they need but the best thing the press can do is make sure they get the facts and figures out to shape the stories and work with the reporters to get right. freedom to get the facts out there than that is bad on us. it is incumbent upon any press shop to make sure they're educating and informing reporters to say don't let the press secretary as a press secretary to the daytimes to say i had him call them back platas of the secretary guess to say call the person back. my question is did you educate the reporter blacks there is a steady and here

is the following this is why it is important decision or why the narrative is not correct had you done your job to inform them blacks if you have done that then that is the healthiest thing is to make sure we get the facts and figures and the story out. >> q have combative exchanges with people. is that the role of fighting back quick. >> depends if this a true conversation tell me what you think. if that's the case coming is one thing but the from call that i get is give me a'' we're writing a story.

that is not journalism. i will just not hanover a quotation to legitimize a story. to often i have a of a problem that is not reporting that is just collecting and cutting and pasting so i need a'' buy deadline is intendants. all be doing is adding legitimacy to unexercised. [applause] >> so let's talk about that. you have been at the rnc since 2011. and 111 nights of marriott. >> so describe your

interactions with trump how does he consume media? >> i have always believed the more people we can get to know him the better. he is unbelievably carrying coming gracious, you laugh a look at the people who live been around him at trump towers it has spent 20 or 30 years but his properties. he takes a personal interest in people's lives i don't want to get into it but he has done that with me as well to call and check on you and show concern. i know one the exterior is a uh tough side but he has a true concern but when you are in meetings with him as cabinet secretary, his constant question of how do i get that done? he is self motivated to make

things better fit escapes the narrative by which it is something where people could see one on one. >> so why don't people see that? >> but the town halls with the family there is consistently more opportunity we are looking for to do that but it is the side of him as president, a lot of times, as much as he is and the camera all what moments he wants a private discussion with a family going through tough times to experience a loss. as much as he appreciates the spotlight the has the private side that is not known.

>> you are in front of the camera is a lot you went to connecticut college with a master's. >> i was a japanese language major. that is read the story ends. [laughter] i went to college in the early '90s and japan was coming on the scene as a powerhouse i grew up in a very working-class family and my parents struggle for money for college and i thought i could make money if i learned japanese with uninterested in the economy.

and every neighbor said water use selling now? but i went to first couple of years and hour-and-a-half every morning but i did not enjoy it so i took a government class and i really felt challenged i enjoy a the lead discussion of politics in felt energized and started to volunteer in campaigns in 19 -- 1992 we lost by 2300 votes and then he hired me back to run the field operation in 54 towns and cities we lost by two votes on election night. so i came down here. working at night as undated doing research.

we did go through the congressional record and get $0.75 per article i would work for p.m. through midnight in a basement and now a gym. and then to do the job that the press. >> i hope that was not my cup. [laughter] >> you cannot guess over. >> [laughter] >> but the poster i was with said there is a race that

there is a have a week of primaries do you want to do with it? i said yes. i moved to washington and pennsylvania for larry welch he dropped out of their primary right before but at the time i was a campaign manager and press secretary. so another pollster called to say running for reelection i said i am a campaign manager. [laughter] and i happen to be free so that kicked off so now i have worked 11 different members of congress but i enjoy the hunt and i think one of the things that the end of the day e.u. have this story or does not come out the way the wanted better you are crushed buy

you know every single day where you stand did you shape the story? did you lose? good days and bad days but you can be a legislative assistant and still have an amendment passed with the omnibus bill lot of people want that to happen. >> you talk about the press access but one of the things the trump campaign gained notoriety is banning reporters and outlets. use said that will not happen? >> there is a big difference is a private event you using private funds. we have a respect for that press says you cannot ban

the entity with a conservative liberal or otherwise that makes a democracy a democracy so there is a vastly different model with government on both sides. >> but as far as the press pool. >> we have a of press pool. >> is unprecedented estimate but to be honest he is in the middle. but today stanley brought the press along and there is a balance is that we want.

we want. we want. prison balance that you can see thank you want to see everything i would like to attend some of your meetings. when it comes to government access of what happens with a private entity. >> you see how he reacts coming he watches a lot he read a lot and design twitter quite a bit but i do think as a whole if you look at the coverage that he gets , lot of times it is hit first and ask and there is almost what he could do to

satisfy the press corps and nothing will ever be on his

net worth but it is not what they are qualified to do. >> but i was talking about the disconnect. >> but that is what i am getting at. they don't come into say thanks for the job you understand in the trump administration you were there to levant's his agenda to get things done if you don't get things done he will replay issue. >> how long do they have. [laughter]

>> key wants to hit the ground running. i know that. he wants to bring real change right away day number one. that means getting things done to focus on the economy , job creation creation, reducing regulation and those will happen date number one. >> how long will it take to replace obamacare question mike that is dependent upon legislation and executive order. >> we want to ask that there has been speculation the next event is that what you are looking for? >> i appreciate the speculation but until the president-elect makes up position or in answer you'll

never be ahead of him.org he met with him? >> no. >> when you say that, in thinking about the playbook and speculation and cabinet secretaries does that mean his decision changed greg. >> no. it is a process that people who come in and. >> people will need he made a decision but until erisa said did this not vital. >> so you think it is just speculation greg. >> i know that it is. that is the people on your

staff. or the potential job candidates to believes but did is not final but you are known at the rnc and you have been informed? >> not true. >> no? >> there is a clear delineation between anything i have ever done. have i walked into the office absolutely but i changed immediately. >> the most pressing question will you reprise

your role as the easter bunny at the white house as you did before? [laughter] >> give us that back story. >> that is something will definitely press him about. my wife is sick the audience . right about the same time i said sarah armstrong is head of the visitor's office and she was having a hard time. are you serious? out cool with that the? yes.

can rebecca b. the handler? she said yes. but the same costume that uc has been around since the '60s or '70s. [laughter] get in early. the early morning shift is where it is that but once the sun comes up that is not the place to me. [laughter] >> happy birthday. [applause] we appreciate your candor or for those in the audience enjoyed the u.s. also to bank of america. the last one of the year state to attend and 2017 have a great evening. [applause]

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>> i am laugh from the daily color. what dna of the fact what did the cia actually prove? >> ken is a lot of peer is what we hear that they say. i have not seen anything. and sightseeing to your first question is what the

sources say and what we are seeing is there is an obligation. >> you hear anything from anyone? >> no. >> i am also with "the daily caller." what do you hope the trump administration will do what. >> as i said earlier we have to be prepared. to often we felt his son uh keep mainstream media types. that is fine with the help the media but there is a lot more with what is going on. thanks katie. >>

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civic bnd head then we could not so in the face cream that forced us to look for other markets. >> i think the challenges are very great over the course of the last many years has done serious damage to our capabilities to meet with those threats. >> there is a lot of flash points and the administration will have to

look at that world and define policy that we need to deal with tab but then develop the defense policy to construct that. >> and with those shifting sands without apology for the safety of life, the importance of marriage and freedom of religion.

. >> [inaudible conversations]

good morning. will contused american enterprise institute about future health care reform. lammas scholar of health care and policy here and i am delighted to be inside. contrary to what some have claimed is there is no shortage of proposals for the affordable care act from republicans of all stripes are members of congress from speaker paul ryan food produced a better way that you may be familiar with.

dr. taub has his patients first act and other proposals over the last six years to members of the senate and the house. so including the project or in collaboration of the colleagues from aei and others and there is no lack of ideas. deal may question is now is the only republican in charge is a willingness to move forward? the proposals we have seen in the past typically have retained subsidies. but they changed the way

they are designed. to purchase insurance to buy coverage and create a high risk pool and a transfer the rail authority from the insurance market back to the states. each of these proposals of course, revealed the affordable care act but to put in its place a policy that promotes more market oriented consumer driven few of health care. but specifics matter. the agreement on the philosophy that there will be an agreement to republicans on the go or in general of those provisions.

the first panel will focus the of what is the bill's student -- insurer with affordable coverage and not necessarily a guarantee that everybody will have coverage but they have to have the opportunity to get coverage. i feel that it should be affordable. what is needed job the way to insure that the individuals will continue to operate while other changes are implemented and in particular now that they are in charge to support dat is over the last six years and are ready to put the reelection on the line for them. the second panel will discuss the challenges of

such legislation but be will first term with the first panel and that will briefly introduce everyone here in in the order they will speak . first we have the professor from health care management and insurance risk management at the university of pennsylvania. next we had a distinguished institute fellow of the urban institute and among many of other things, former cbo director and my colleague tom miller will wrap up the panel with discussions or wordy arguments with the audience. take it away. >> good morning.

i will focus my remarks on the individual market and what the replacement bill will make that perform reasonably well. i am not talking about adjustment -- logistics' and don't have anything to say about medicaid but to have a very high simplistic level but to talk about changing the law it will have to be very specific so let me remind you the affordable care act with regard to individuals with the health-insurance market with a guaranteed issue engravings without regard to health status and that is the big deal lifted restrict ratings based on age older people can only pay three times as much as younger

people that was like to make college more affordable than a higher price. providing them on essentials benefits, and the subsidy scheme is fairly complex and also a scheme to subsidize and then there is the individual mandate that has modest penalties and there are open enrollment periods every year where people can sign up for coverage. and up problem they do not appear to be achieving sustained ability. although quite a bit lower the risk pool is sicker and older than predicted.

people have been waiting to buy coverage than signed up during the moment period when they need care. and there is the fairly large premium increase actually they are fairly large in some states and back give the big picture premiums are high and cost sharing deductibles are also very high. so people with relatively modest needs to say that does not cover much. the lowest participants are not heavily subsidized with reduced cost sharing in to reduce premiums but 200 percent of poverty and 400% have got hit in some states in recent years. so insurance companies overall have lost a lot of money in the individual market.

the losses are big and many have decided to pull out of the key features and i would commend in wireless to lay out the groundwork of proposals. the one thing that we would expect. so any more than a pricing regulation and infections the form of a subsidy that this increase seen with h to make sure they are affordable. becky far each is an pacing conditions those that are

continuously injured then they could switch pinchers with the individual market not paid premiums as guaranteed issues, also the initial enrollment period where previously uninsured cannot sign up but does not depend on their health status progress people waited or did not sign up they lose the protection against underwritten for pre-existing conditions and those in a nap without coverage the state or risk pools with federal funding. >> there are one is the

amount and design of the tax credits. if older people don't get a bigger tax credit then you'll have adverse selection among the older people. but another issue is sure did citi to in complexes is not clear how a refundable tax credit system can lower the income people but if you start relating some people get ed decker credit does complicate the system and the worries about labor supply. another issue is whether or not if the health care cost varies by region if you have a tax credit uniform nationwide that may not be ideal but if you tailor the tax credits you open the

worms. no a quick point to a better way proposal does not allow lepers and to give up employer coverage with a tax credit so if you are in the group playing. representative price with the tax credit but in theory to choose free in the coverage of work but impact this it creates uncertainty and also with a great resistance to do anything to undermine the market to have future concourses relieved and toward the broader segment of the of population

>> these high risk pools what you want is enough of a penalty so people are not to encourage bottles though for those who fall between the? with significant federal funding will be required to make this work also i would see a discussion to provide flexibility for any federal funding for the higher risk buyers that would go into a pool. bb federal funding could be used to subsidize more directly and this whole issue of adverse selection we built into the world you don't have to pay higher premium with the initial sign that period to take advantage of those

protections is there a disproportionate number of people in for health clerics will people that lose coverage at work will they be disproportionately less healthy? this is an open and question. a lot say you have to have individual market but it is pretty bleak so if you design those incentives for people to buy if they are hit later then we may help to achieve a four month stability but conceivably it could be those issues associated with that. we have to worry about instability during weepy l.

and replace will the of markets we stable? and my conversations with the actuary that there were rebuttals whole new set of rules to worry about the of risk pool one looks like after very careful consideration to having stability mechanism to help insure as stable market. and whiff of risks for us which some have viewed that clearly one the risk under the affordable care act

against adverse from the worst in average risk pool but i will leave it simply to say there is a mechanism that is desirable to make things work. >> with that design quandary most people think that basic coverage should include catastrophe protection the matter what coverage they buy it should cover the high end with no life minutes or annual limits but the problem is that many buyers are likely to prefer coverage that likely will not happen but those that our more likely have been of

$15,000 per year people merely want to get something that the lower end but that fiber sevener $10,000 expense is very damaging to people and i worry that emphasis on catastrophe coverage where people of modest means have a very high a deductible that protects them against rare even as but that does not help them pay the bills to meet their obligations of a month. on the other hand they could get richer coverage but the premiums are so high it is viewed as an attractive. it can make voters unhappy. i don't have a dancer but sometimes we underestimate the desire of relative modesty to have insurance that pays for those expenses

they cannot budget for. health savings accounts can help but to have love way to provide a subsidy so people could use more of there dollars on what might matter more to the more of the time >> is a pleasure to be here. i am glad you research that historic aspect. i will make some rather simple points and first is over the last six years has taught us anything everyone major health reform to be politically sustainable in past to have bipartisan support and that is a

political reality because it constitutes 16 of our economy and is represented by powerful interest groups and not all of those folks are republican or democrats put that procedural imperative is what the republicans are proposing using the reconciliation process. because it is limited to legislation and mandatory spending so that would have 60 votes that would attract

more democratic votes. but those schools that have been articulated by the industry shin and the repeal advocates but to refresh your memory the promises include broadening the number of faults with insurance to make health care more affordable for americans, improving quality of care with reducing government help spending to provide more flexibility and regulations for the state to providers and participants. there are some of trade-offs although there is with think

but third to implement the replacement will take a good deal of time. to move warps speed through the legislative process, and notwithstanding at present there really is no consensus with those agreed upon plans with the public but the of philosophy is easy to do end is much harder there will be complexities and controversies once a republican can modify to attract democratic support than the cbo has to score the of language and nine of

the of philosophies i give one have been scored and. >> and what would they involve? maybe the drawing board but the legislative process is with several committees the beach chamber will do their drafting and those the resolve the differences? once the president has signed. >> the fact that we don't like regulations crisis

throw a but then you will be tim for the various stakeholders improvisers for whatever the new system is. i would it be very surprised so we're talking about a deep breath and going about this in a very deliberate way and it is worth remembering as policymakers'

we at infrastructure and entitlement programs increasing military spending and discretionary spending and with those controversial issues. but the affordable care marketplace in day need some shoring we were in a situation that reinforcement was needed. but then added usual period assistant canby point and

i'm sure they have workable mechanisms for adverse selection and that was intended as the affordable care act leading to a uncertainty among providers and but the strange component of the affordable care action but immediately that was a component of the reconciliation bill will from january 2016 pour a decision was made that is

currently on hold that occurs much faster that the voting public may not like be affordable care act they like the parts that they know about and of consequences but some of the parts they don't like a car thought to be necessary for the parts that they do like and it is explained the individual mandate to maintain adequate coverage with pre-existing conditions that underwriting would be limited and to explain that proposal that might encourage high participation

on a voluntary basis for those to domain tain continuous insurance who don't know of these approaches will work it could be tremendously complex and intrusive if you keep record every month maybe the family splits and the kids get older to keep track of every petty so you don't like that to inclusiveness and now my final point with certain aspects that does not necessarily mean to be enthusiastic of the approach that has spent put forward

nor does it mean they will be to avoid of complexity or limitations it is just the complexities of the affordable care act and just to illustrate this i will say a few words on those components but first opponents like the rail suggest and those tax deductibility of the employer paid premiums. but that is passed through the of workers who after all make the decision in what they are given a choice of with this is on the employer

that is passed down in the invisible way. the employer makes a decision with the insurance company and then is a different mechanism. so that cap does not prove any more popular than of a cadillac tax whether that varies from the health status, a geography, and the risk of the occupation. >> and the myriad of implementations to allocate the proportion of thought premium meant now have different categories for individual families or

adults with a child. day are not very by age. . . most would find the subsidy pretty skimpy, probably about enough to buy a bare-bones catastrophic policy and not much more. how is the public going to respond to that. and the comeplex advertise of the credit which includes

determining how to calculate the average debt benefit of the average employer man and how one would handle the differences between the caps by internet and insurance filing unit, would easily be is a great and complicate as they are under the affordable care act. so, we're comparing sort of an image of the desirable to the reality of the affordable care act. when we talk about this. let me just conclude by noting that contrary to what one hears in political echo chamber, the public is not clamoring to have the affordable care act ripped up and replaced withsomething new and rat include dash radically different. the cares family foundation poll found 20% of the country wants to repeal the entire law. 17% would like to scale is back, but on the other hand 30% want to expand the law and 19% want

to keep it where it is. split evenly. we are divided nation, which says that as hey move forward we other should try to tom together, and coming together might mean revising, reforming the reform, as opposed to crying trying to create something new and different because it has the label on it, obamacare. >> thank you for that very optimistic view, bob. but labels do matter. tom, you're up next. >> hi. thank you. joe, scott and bob have done an excellent job of depressing us in dealing with the -- so let's move on to the entertainment possession of this reality show. -- portion of this reality show. a v.i.p. strange group of political aliens lanked in the white house and health policy land, the previous incumbents

and allies and supporters are having trouble understanding them. they didn't seem to speak the same language, and not e that's not freezing, they didn't come from the same political universe. and the main leader seems to have seven limits and eated in first class. so the translator is here in a different kind of landing party. still working on converting abstract symbols into something we can understand about what is ahead. let's start by contrasting the different approaches by aca supporters and opponents opponed constructing reformed health care system. president obama and allies trade to build a very complex, huge, and expensive vehicle never seen before. sort of like the fabled spruce goose by howard hughess that ron over budget and only got off the

ground once. it was too wieldy to lan. the republicans claim to bill a much smaller air policy airship, stripped down so almost anyone can fly it, truly consumer driven. they just assumed there we be onway where it can land safely. just about any runway might do but they haven't built one yet. the feel out of the biplane was a member of the house freedom caucus was not fully informed. let's get to the basics. what's the game plan for republicans and thes a ca? the main goal. repeal as much as possible. and, damn it, we're going to have to replace and revise as much as is necessary in that order. some targets out there. most of them have discussed by scott and bob along the way. who gets the money and where it

goes. regulation and mandates, individual mandates, hart nod too do politically and other regulations, budget reconciliation. the taxes. everybody wants to get rid of taxes. the problem is you have to replace the revenue and the kick backs industry, you change the leverage factors. medicaid passed 0 the states, both a budget donor, big deal. and it's also a place to say the problems are to be fixed by someone else and the blame will be assigned to those instead of washington. the federal role in reducing hack hillary clinton and this is healthcare and this is politics settling old scores. what might be better steps? this area where we all tune out so you can read them yourself nit real details are not what most washington observers are

interested in so i'll get to the main political horse race action of the paramutual betting window. it's like flyover land. the real political bottom line here. from republicans if you blow all the smoke away, we won't reduce now subsidies very much. have to make the numbers balance but no one is opposed to getting money in their pockets from someone else. they're thinking it works that way. the most important point i bust want to interfere as much as how much you spend it. the one caveat your mileage may vary. now, there's some -- you can't goo that fast. that's the usual caution on this type of thing. a quick summary of the institution, bob hit those. all important ones but i underscore a couple of them. the past attendance, which is members of congress and their staff have a great deal of difficulty going in new directions so where they were in the recent past is where they'll

go in the future youch can't you end up going in similar directions you did before. the transition is using -- think about the different cultures and temperment of the house and senate. in house they talk about regular orderren replace. in the senate they're going tight it up in a bow after we have thought about and it have no way to delay further. they're going to operate differently and a mismatch on the timing. now, the danger in this, if you move too quick you might get exposed while thinking you're whether i on the grand stage now not really ready to appear. bit is some risky business. these are the different taxable moves. they're very good at this one. fire, aim, ready. we have had the various alternative scenarios in terms of playing chicken but the hard one is when you're trying diffuse what has already been out there. cutting the wires on the bombs sequentially.

an example here is, is it the green one or the black one? what we have are two mutual hostage theories going on two different sets of bombs. the one on the right, i suppose, is -- just blow up the aca, full repeal no collateral damage no harm. there will be harm if you don't blew it up entirely. that's different type of political explosion. but the other one is from basically the defenders of the status quo, don't touch a thing. very carefully constructed and if you just cut the wrong wire at the wrong time in the wrong sequence, it re blow sky high and we'll have tens of millions of people without insurance coverage, tens of thousands of people will die win the next year, so that's the alternative hostage theory, if you don't cults the wires carefully and therefore you have very little maneuvering and end up in the same place. there's some timing factors for major changes.

this what is driving the process. one point of view, if not now, whenever? you have to seats the moment, but sometimes it's not shock and awe, it's the shock and awful. you recall our history elsewhere. but there's a pentup political demand saying you have been talking about this stuff forever. put up or shut up and you won't get this thans jennings as president obama found out. he had a super majority for four years. the lesson is we have -- fled to have more bipartisan gestures. the other lesson is bipartisan gestures only go so far and you have to cut to the chase, did that's one tier theory about what happened seven or eight years ago, see what happens this time around. but there's on the other side of this reconciling rest rick -- rest -- rhetoric, i think

there's go to be some real changes ahead. the direction and emphasis new e never as much as people fear or hope. what in that direction? more private and less public. matters of degree. regulations and mandates. a re-arrangement, reduction of the overall subsidies and readjusting the winners and the losers. the decisionmaking a little more back to the states, a little bit more in the handses of consumers and then what do we also get? new set's overpromises and developing new excuses and evasions and if trouble starts you resort to the three ds. more dollars are spent at the end of the day. just moved in other creative ways and then the other d is delay, which means, well, it's it's going to get there eventually, and the key one is definition. you are going to get things said to be different than hey were before. what you do it invent a new

acronym and come up with another name. that usually works for a good day in washington. there some imperatives. you have to pass something because the alternative is that just not very good. what you do is whatever you pass you call repeal. it's just a matter of language even though it's the same way and you have to develop -- develop some creative work-arounds, all the type of institutional factors. they will be busted by a majority which has no other alternative. we have invented them before and will event them again in the future. recalibrate the incentive structure. the idea it's going 0 be a one size, what do you need, not how it's going to work. it's going be to changed around. the same way they were browbeaten in the last administration, that will help in terms of what keeps them onboard because the alternative isn't that attractive. the problem is kind of this separation in time between some version of repeal and some version of replace. the goal is to come compress the

gap. the real goal is to measure nick its happen but a you can't do that. so you have to -- when your make your compromise, emphasize this is being done for the clear equipment commitment to higher goals. and don't look at the ugly details inside as we meander to trying to do that. i always come off as being so critical of the affordable care act and obamacare. like to give them credit. let's talk about what we actually accomplished and achievedded, some failures faild great discusses. able to change legislation without legislating. good accomplishment. the round of consulting and conferences such as this one. we appreciate that. that's something done for the future. set a new record for the longest opposition to major entitlement program. eight year -- stenyears after

it's passed we're still fighting about it. pretty good. unable to shift all or most of the blame. that's a failure to -- an objective but didn't get there. substantially increase enrollment in high deduct able plans. we just put enemy in the exchanges -- put them in the exchanges and then reconstruct them, unlike general sherman, didn't have the same amount of fire power and urgency, nevertheless, there is no substitute for claiming victory as the majority which wants to remain a majority so as they idea to say in texas, there's no back door to the alamo so there's no sunner den. the problem is you need a lot more fire power to fire through the front door. some of my friends friends in te conservative community say we'll repeal it anyway. in the background playing is the theme song from "m*a s*h." i would just opinion out, though, it may turn out to be awe mutual murder-suicide pact.

thank you. [applause] >> that was disturbingly upbeat. okay. well, let's see. so we have a few minutes for -- i'd actually anticipated a little argument across the panel but i see a certain common theme here. but start off with any of the panelists, want to make additional comments at this point. >> uh-oh. >> no commitment. >> revise and extend our remarks. >> i will make one comment, which is that -- i'll call it obamacare. obamacare had a huge advantage. it got there first.

and so to some extent, by getting there first, it cut off many of the options that you might have rather done. in particular, although i agree with bob's point about the difficulties of moving from -- moving to a cap on the employer exclusion. nonetheless -- the cadillac tax not come, maybe the cap -- maybe every economist's dream of a cap on the employer exclusion for employer sponsored health insurance. might have actually been trade. lard to predict. but that's at least a pretty good example you can't go back and you can't go back because it's one thing to doo -- to take away a tax but for the republicans and democrats it's another thing to put a new tax on. that's a real problem. so the other aspect of this, always struck me, is that the democrats really took the easy

job. because it's very easy to find ways to funnel money into an insurance market and expand coverage. that is the easy part. the hard part is that affordable part, which republicans have in essence said, we're going to do. and -- >> stole the name. >> well, that's true. so we'll have to have a new term for that. how about less expensive. anyway, so it's not just an uphill fight for all the reasonses that people talk about but because there's already history. and it's not just the regulatory history. it's the political history that i think may be the biggest challenge of all. anyway, with that bit of commentary articulates go to -- let's go to the audience. i'm sure somebody must have a good, positive remark to make. please wait for the microphone.

it's going to talk a little bit. when you do get the microphone, please say who you are and please make your statement in the form of a question. >> good morning. i'm an independent healthcare consultant and i work on both policy and new product technology that answers the question that i think is important, which is how do you improve the outcomes so you drive down the cost of care, and frankly, it's the best time i've seen in a long time, which i the good news, that a number of the programs that charge penalties and incentives are changing the direction of health care at the love level. -- at the local love and the accountable care organizations multihaltly bill we a great mod toll draw down costs, so i hope we don't move in shuffle of the

national policy, very macthrow thing and will take more time, that many of these problems u-under the pack crow macro program are innocent viced and use the accountable care mod toll get appliance on our medicare patients at the highest risk of incident of episodes is which aren't good. the question is how don't we lose any national policy, let's repeal obamacare, which will take more time than anybody thinks enthe emphasis on the good stuff that's happening? >> well, the first answer is that they're not in great danger because most of the republican policymakers never read that part of the law so it's flyover land and not part of the political congress tension. however, would temper your optimism. we hey expanded the vocabulary of delivery system reform and coming up with all kinds of

theories and terms and not yet proven. in order to feel good about that when you pour through the actual evidence on the ground, there's a lot less there, and part of the problem is, you can have all kinds of experiments which work very well for some experimenting. it's the scaling up. what i would hope policymakers would do is stand back, witness until someone else succeeds and claim it's there idea. that's innovation through policymaking. >> that makes sense to me. the other thing is, let's keep in mine that terms have to change. so, we're not going to call them accountable care organizations but a that is used up, right? and another factor is that people often forget, the -- what is called the innovation center isn't very innovative because most of the ideas have been kick around for decades and furthermore haven't worked out very well. not just -- partly because those

ideas fall into the same category as philosophy. philosophically they make sense. the ground, how do you do it? and certainly having a system where you simply say, okay, this part of the country you detroit is in way, probably isn't a reliable test of whether something works or not. so, there's a real challenge there. i am a big believer in testing ideas but i believe in testing, not simply legislating without the use of congress. >> other questions? actually i saw you second and then after that. lost all track of who raised their hands. >> all republican plans talk about competition across state lines how rick is that to implement and what would be the

political forced that would impede that. >> i'm partly responsible for that since i wrote about it about 14 years or so ago and hypothetically. a couple of problems. wrong moment, wrong time goods where conceptually, which is a better iteration you're trying to create a consumer-driven competition in how health insurance is regulated. we have done is in the other policy areas and you get some variation. federal regulations is one type of monopoly regulation which doesn't work very well. justoff you have a smaller boundary line, if people dome lining the regulationses which is part of the product they should be able to find something else. there's some speed limits on this. the standard one thrown up isow went get a new entry into the market pause you can't get the provider networks. that's trial and error, someone as to put capitol down and make it a successful business. sometimes you open the door and

people come in, sometimes they're don't. the is we're in wrong moment in time. people point to a half dozen states with limited versions trying to make this possible. who is going to do anything when you just passed the aca? which is come -- compressing and making more uniform the regulatory parameters so you don't have the variation. now, they would, how do you become a millionaire? first earn a million dollars. so the same type of thing is -- steve martin joke. if you first repeal the aca or the fed regulation attached to it and then a phase-in time where states vary again, where there's a reason to some somewhere else, you might have a market opportunity which will save huge amounts of money but depending on the variation in mandates and rating rules, which some safeguards you my beth aim to save 10 to 15% of the premium

if you get the other miracle chase state insurance real e reallyingor -- regulator, where it opens the door regardless of a regulator saying you can't come into any state. so over the horizon maybe. right now doesn't matter but it's something that people talk about thaws they heard about and it seem like good idea at the time. >> i would add that anyone who implies that moving in that direction is some sort of a game-changer. really doesn't understand how the insurance market works. >> it is rare complex because you have to decide are there going to be national minimal standards for what we consider insurance to be and can if you're going to leave that up to different states, some state is going to permit rather skimpy packages or insurance that doesn't cover certain expensive, mental health or whatever, and

then go off and sell that, and it's going to undermine the risk pool in the other states, and everything begins to fall apart. so you get into a very -- >> works in two directions. the race can be to the top as well as the bottom. why you have a mismatch how you're regulating insurance in a state and what most of the people want to buy. that should tell you something about the regulation. so, if you put in some other provisions which say, you can't sell insurance in another state unless you sell the same dog food to the dog inside your state. begin to create those mutual incentives so say you get ath can't get away with fly by night stuff. >> you squeeze the outliers, to those with little and toe too much regulation have to move back to thmiddle.

>> the proposal is devolving regulation back to the states under repeal and replacement but we don't trust the states to develop regulations to protect the own citizens and as good runs we want to federal government to tell thestates can do and i'm being a little satirical here. i have a problem with insurance over state lines and federalism. think you have to pay attention. if new york -- new jersey wants to have mandate is want to know how that affects me in pennsylvania. otherwise i income there has to be a certain amount of defer residence to state authority, and clearly repeal and replacement proposals emphasize that states can get this right and come up with their own systems to provide affordable coverage. so there's a little inconsistency in the dialogue. >> certainly it's really annoying that healths service markets don't align perfectly with state lines.

but i think we can fix that. okay. well, let's see now. >> paul heldman we hell moan simpson partners. heard this addressed in dribs and drabs but looking for a cohesive answer. what needs to be done to keep the individual insurance marketplace from eroding or imploding during the transition? i ask that in the context of when you think about it you have a president who expended a lot of energy trying to implement this law and getted signed up. you're moving from that from a president who doesn't believe in this law and regime is saying get rid of this law. wonder, that's going to have an impact in the marketplace in and of itself. how do you address that?

>> all right. >> i can clean up. >> you might try -- this is a new concept -- selling cheaper, more attractive policies to people that are willing to buy them. that's the starting point and sometimes taking the regulatory lid can help. you can stange-manage transitions. you flush dollars out the door to keep people at the table or threaten them with higher taxes for exiting the markets when they don't do and it use both tools depending on what is necessary. you can call the risk corridors and rear insure -- reinsurance something else to pay off people to stay there for the short term but on the long run you're going to spread the subsidies for individual markets to other groups of buyers who got left behind at the table in the outside market and they're going to be happy about it, and you're going to have less attractive, less expensive coverage for the other people who aren't going to

get as much and less income related. it's not going to blow up. the last refuge of anyone who doesn't want to play health policy, adverse selection, one for your lives. people are really isic we don't go to the explosion point you self-correct, sell dill disproducts. we saw this with the bad lives 1990s women move on to another set off dispinting, frustrating policies and that's what call success. >> you need the microphone. >> could -- >> i'm just ask before the legislative fix -- i understand the direction that the republicans want to take the system but before the legislative fix you can't -- you still operating under the mechanisms of the current law. right? >> but you are already stuck for

the next plan year in reality you. can't exit the next month, just to bleed out hipaa. you're looking for better days ahead. youer 0 lore comply milessed alive that was pleading you drew and then you hung in, another year and another year. the same thing will happen in this case. >> the you that tom is referring to is republicans. run'sed have to deal with this problem. democrats can sit there and laugh. another point that tom made in my office, if you work here you learn a lot of things that are pretty useful to know so i'm going to give tom credit for this but i'll take the blame for getting it wrong. part of the aspect here is how much -- who has something to lose now? in other words, it's a bargaining situation. leaving aside whether donald trump is really a great bargainer or not, this a

bargaining situation, the same bargaining situation that barack obama had six years ago. the question is who is going to say uncle? it's not obvious to me that insurance companies are all going to immediately exit every market. >> six years ago insurers were concerned, where is our growth going to come from? we're stuck with flat moyer market. we are have to get into medicaid, which they did. we have to get into other areas, and if you give us some subsidies we can sell this stuff and they put some stuff on the table, thinking that would make up their losses on volume. didn't happen that way under the aca but hope springs eternal. >> time for one more quick question, and actually this -- could you -- the next person. >> shannon from the -- i just want to ask about winners and losers if the subsidies are

changed to tax credit system, that is age based and -- if we had the problem of getting young invisibles into the market before how will that change with changes to spending and the sub diz. whoer the winners and losers in the replacements land. >> winners, lower middle income white males, slight he older, poorlied of indicated. go with the folks who vote for you. >> that's a definition as opposed to real. >> under any sense able rating system, younger people who might not qualify for subsidies under the affordable care act should be winners under the system because they will now gate tax credit to help them pay for coverage, and in addition, they won't have to pay substantially higher premiums to help

subsidize older and less healthy people. so less of that compression of premiums that does harm younger people unless they quarterfinal for major subsidy under thes affordable care act. look loser depend's then detail. the rue fundable tracks credit practice -- it's not clear how that will work in terms of providing the same amount of subsidy or comparable amount of subsidy under the affordable health care act for people, 150, 200 hsn of poverty but that it very politically sensitive if with see significant reductions in the net subsidy are in some replacements plan for that group of the population that, will be politically controversial to say the least. >> well, let's see. we really have run out of time. anybody who has questions for this panel, ask the next panel. you're tribal get better answers.

now, if we can, let's try to change panels very quickly. so thank you very minute, and please join me in thanking the current panel. [applause] >> good morning, everyone. let's try that. get those right. good morning. this is the second panel of our event today and i'm very pleased to moderate it. i am jim capretta, a fellow here at the american enterprise ininstitute and i have a distinguished panel. just a word about what we're going try toy too do.

the first panel covered a wide range of subjects associated with the status of the ac and the potential repeal and replacement. these folks are going to be able to touch on those same topics but we want to focus a little bit in part on the how. how would you go about doing this in a legislative sense, because i think in -- lots of times, particularly in this case, the procedure and process for moving forward with something could very materially affect what is done, and so maybe thinking through the implications of the various potential paths can help folks see where they might end up if they go down that particular road. so, a little bit this morning on the how of doing this because it's quite complex, as you'll hear as we move forward. let me introduce our panelists. the first speaker is james wellner. james this heritage foundation's

group vice president for research. served on the nil various capacities for a decade, for senator jeff sessions and others. he received his doctorate and masters degree in politics with distinction and has written two books relevant to our conversation here this morning, especially the one that will be coming out next year from the university of michigan press, entitled "or parliamentary war, procedure change in the united states senate. "our next speaker will be doug badger. we have known each other for ang long time. has an incredibly distinguished career work neglective and executive branches. we both sender in the administration of president george w. bush, he worked in the white house as the top health care policymaker for the president and then later as a key person in the office of

legtive affairs and worked on the hill in various capacities, including a long stint with senator don nichols from oklahoma in this capacity in republican leadership. the third speaker will be john mcdonough -- doug is now current lay fellow with the galen institute. john mcdonough is the professor of public health practices in the department over health policy and manage. at the harvard th chan school of public health, between 2008 and 2010 he served as a senior advicer on national health care policy reform nor the u.s. senate committee on health, education, labor and pensions. he worked on them and helped pass the affordable care act. for five years, prior to that, he served as executive director of healthcare for all in massachusetts, where he was an instrument principal player in helping lead the push for

massachusetts' reform under governor rim mitt romney and implementations. he has written sever books, including "inside national health reform" she is story about what went on behind the scenes. so, with that, i will turn it over to each of you to speak. think we recall have ten minutes are so so and then we'll have the some discussion amongst us and some questions. james. >> thank you. good morning. and thank you, jim, and thank you to ai for hosting this debate -- not debate -- a discussion, should i say. it's wonderful, great to be in this bull building. a little chilly sounds but the climate system here is modern and ready to go. not chilly in here at all, but always good to appear alongside such knowledge inable and distinguished panelists and i'll do what i've tried to do in my life and associate myself with

people smarter than myself so you will think i know what i'm talking about. we'll talk about the how of healthcare reform and how we can expect it to play out, and this instance, as we have all been read neglect newspapers the how is just as important, i think, as what. what can happen. 'll emphasize very briefly three points to help frame how you think about the how of healthcare reform. the first one, which i think is more apparent now than it has been in the past, is if the republican party is not as unified on repeal also it has appeared to be over the paster seven years. the unity around the repeal effort is striking if you think about it. other than the idea of repeal and replace, there's been no qualification whatsoever in repeal. the early messaging was the tax is too much, its spends to much, leaders say they're going to

tear it out root and branch, completely and this has been a consistent message ol' from every single candidate for offers running on the republican party, for the past seven years. this is a implications. that unity one could suspect could be a function of the expectation we would ever be in a position to actually follow this through and repeal the law. could have led members to be a little more aggressive than privately they might have wanted to but it is a reality. it has created a new political reality for the party. another point here i would like to emphasize is the 2015 reconciliation bill. as you recall last year the house and senate both passed reconciliation bills, they've been reconciled and the president ultimately vetoed the last bill 40. 15, the house passed a bill that didn't repeal much of obamacare. it certainly didn't repeal everything you're allowed to do

under the rules, under the budget rules governing reconciliation, basically repealed the individual employer mandate, medical device tax. it came over to the senate, and the senate was -- reddy to go to pass the same bill. a couple of senators said we are going to demand we repeal everything we can and that's led to the 2015 reconcilingation bill that the president veto-door zero toed. then that was a struggle, with the house passing a bill that wasn't as agreessive as it could have been in senate there was an aggressive debate whether that bill should expand it salt even at a time when the bill was glowing to be vetoed, it one can go to become law atlanta would a private debate playing out as to how hard the republicans ought to push to repeal. this is important because time is important here. a look lack of unity backs more

apparent and the repeal effort become. begins to compete with a legislative priorities and in the new congress there's only 52 republican senators. and if you expect all democrats to vote against any repeal effort, you can only lose two of those and still pass with a simple majority using the vice president on -- in his tie-breaking vote. their second point i want to make here is there's been a lot of talk -- i'm sure we'll discuss it today -- about the sequencing here, repeal and replace at the same time? and as a practical matter, as someone who has experience the senate and congress and seeing how things play out, the only thing i see that can be possible here is to repeal first and replace later. this is just a practical matter of, no democratic senator is going to vote for a bill to replace obamacare. as long as that bill is coupled to a repeal of obamacare. that's just a fundamental point.

so, therefore, it seems to me that you have to first repeal. now, we did pass the 2015 bill and that seems to be the floor. we can potentially get more and i'll mention that bit definitely is the floor. some talk about, well maybe we can figure out a way to keep the taxes or figure out a way to bank the savings to use them later on but that talk runs head into the messaging, going back to the unity on the bill that has been propoundses by every single republican since the beginning of this fight, which is that tax is too much. it spend too much. we have to reel peitz all, root and branch. if you cincinnati seven years and then turn around and say maybe we should keep the tax increases other, than make sense to the people who are supporting you. there is -- the argument that the bill -- the 2015 reconciliation bill could be expanded to include a lot of the insurance mandates, that were included in the original legislation, i think there's a

good argument you can make that case but we don't know yet. that is a debate that's going on right now behind closed doors with the senate parliamentarians and the leaders in both partieses. what not -- i'm a bit of an opt mist when its comes to insurance regulations. eventive the 2015 bill is the floor -- is the ceiling and that's all you expect can't come back to insurance regulations and as we heard from the prior panel those will drive up costs and if you remover subsidies it creating problems for certainty in the major and consumers but in an environment where repeal has already occurred you can have a debate as what -- a to what regulations you need, and what insurance regulations you need. a lot of democrats are going to make the republicans own it. as someone who has advocated

that kind of think are for many members i've worked for, i can telling you that is is no going to happen. voting for the most part is a dichotomous choice. members are confront private posesel and they're asked to cast a vote and if the insurance regulation are causing havoc in the marketplace there will be a demand to vote one way or the other. regular order here is critical. you allow member answers opportunities to have a stiever amendmentses to debate alternatives and try to boat vote down thing is they don't agree with it's going to be very difficult for them to sustain an obstructionissist positioned a infinned a infinite tim. when you -- if you don't produce outcomes is when you have gridlock and don't allow members to offer amendmentses and don't allow them to debate. so i'm an opt mist here when it

comes to getting read of regulations they're not allowed to be debt with in regulation. that's the key first point in the -- the first step in replace effort. repeal everything you can now, and then immediately turn to the insurance regulations and then start to work through the very difficult debates we have to have in the country about what kind of healthcare system we want. the third point i would say here is that when we do get to the -- after the repeal point on the debate to replace, that needs to be a step by step approach and done in regular order unlike the original legislation here. it doesn't need -- the first panel mentioned this but we have -- when you write something in secret and jam it. >> don't allow people to have any say in it, then you get the kind of situation we're here talking about today. so, again, i think that you have -- you break this thing

into more manageable pieces go threw process and allow for an open debate where the members and staff and the american people can weigh in on what they think is and is not appropriate and i think you'll get some good outcomes. not going to be great. not everybody is going to be happy. aisle i'm not. but we have seen over the past eight years that's the way the system ought to work and when its doesn't work that way, everyone is unhappy. just in conclusion, i would say three very short to go things. one we put too much emphasis in this discussion on this idea of what is the silver bullet plan? where are all the members going into a room and talk it out and come out with a big idea at that time that ill with ann associatety and will love it and we recall all be happy. that doesn't work. just doesn't. no one should have an idea that kind of thing works. we have a legislative process for a reason. we have rules in the house and senate for a reason.

guess what? they actually driver to us outcomes. and when you follow them you will get to an outcome one way or the other. and it allows for a debate to play out and allows for their american people to take stock of the debate and then way weigh in on what kind of system they want. so, the idea that we can't start this process until we all come up with some silver bullet that all the republicans or all the democrat and or all the republicans and democrats can agree means we never get started in the first place. this next point is that the republican party has raised expectations on this issue. i think that's the understatement of the century. and going back to the idea of false unity, if that actually becomes apparent and they're unable to do this, or if they say, well, we're going to repeal everything but the tax increases because we want to use that money that we have been attacking for the past seven years as being bad for the

economy, or immoral or whatever you want to say, we are'll use that for our healthcare plan. that is a very difficult proposition for the people who have been voting for them. then lastly, with the election results of the paster november, there are no more excuses. we have heard from the republican party, time and time again, give us the house, everything will be okay. then we need the senate and everything will be okay, and then it's like we can't do anything without the presidency, and now we have unified government, heading into the next congress. and right now, if the republican party doesn't deliver, it's going to be very interesting to see what happen because i don't think anyone interprets the election result as somehow a vote of confidence in the republican party? that's not what happened in november. people are frustratessed and fred up and tired of excuses from both parties and it's unincumbent on republicans to follow through on the repeal effort and the promises they've made over seven years and then

take a step back and let the process reply out on hautbois replace the law. thank you. >> doug. >> thank you, guys. tom miller, have a slide show here. and my goal today is to add a thirds r to repeal and replace. and that is rescue, because i think that one of the first things that president-elect trump will encounter as white house -- the new president, and that the new congress will have to deal with is enact there is generally a failure in the individual markets and the aca. no talking about the small group markets, not talking about medicaid. i'm talking correctly about the individual markets, the 2015 data that cms released last month documents this to some

extent. the corridors were eluded to in the earlier panel but the idea is to transfer excess gains from some insure 'er insurers to competitors who made execs losses. in 2015, the excess losses more double from 2.2 billion to 5.2 billion, that losers outnumbered winners by five to one, and then even in california, which is taken as a state where the aca individual marks are working, excess losses outnumbered excess games by a ratio of 282 to one. that was 2015. since then, things have gotten bad. we have seen four of the five largest insurers withdraw from most of the exchange. the fifth, anthem, the ceo -- this is prior to the election -- said on an investor call that he may pull his plan also off the

exchanges in 2018 and his stock price spiked upward in a matter of minutes. even the blues plans have pulled out of several states. it's a real quandary that this is now the new administration's problem because we have already got the narrative out there that president-elect trump is responsible for the crash in the aca individual markets. so it's a problem that's wait for him on the desk of the inaugural parade next month. and there's also a general political context to be aware of, which is that taxes are competing with each other how many people will lose coverage if republicans repeal and replace obamacare. the figure the administration uses is that 20 million people gained coverage under the aca. i think that's a inflated figure

for a variety of reasons can but eni've we accept that the latest is that 30 million will lose coverage if a republican replacement is put into place. so that'sed the political context that's going to surround the house deliberations. so i'm going to lay out now three possible possibilityways for how that's plays out -- path ways for house this plays out as congress moves forever of repeal and replace. this first is the one we have heard the most about, two-stem process, first repeal bill and then later replace bill. the repeal starts with a budget resolution, doesn't have to be signed by the president. a simple majority vote in house and senate and will provide reconciliation instructs. the house says they're going to work on jap 3rd or 4th after being sworn. in they're hoping this moves quickly and then to a

reconciliation bill that we'll talk about in more detail in a minute, and generally they're talking about competing that process -- completing that process of a budget resolution and reconcilingation on the president's desk by the first part of february. so we're talking bat very, very abbreviated five or six-week process at least that is where people are starting with their expectations. the second part is replay, and this is kind of lather, rinse repeat. do an fy2018 budget resolution with reconciliation instruction, and to james' point and also to the point that was made by the first panel, you are probably very, very limited in what you can do in a reconciliation bill so this is not necessarily the pathway they will follow but this is a pathway that has been discussed. and the -- that is something that will take a number of

months to play out. so, the previous repeal bill -- there we go -- i had poor clicker skills -- the previous repeal bill didn't repeal everything. did repeal the subsidies and the medicaids expansion but there was a two-year delay. it immediately repealed, as james point us out. a whole variety of taxes. it did not repeal all of the thing inside obamacare -- there was a question after the first panel about what about acos and cmmi there were things they could have repealed they did not. in medicare and medicaid, and as james pointed out there may be things they could repeal that the parliamentarian that would be allowed.

but again, last time out two republican senators voted against it, one, mark kirk, is not coming back, the other, susan collins is, so as james points out a very, very narrow knife edge to get the repeal bill through. i do believe that they're going to have to address some of the rescue things in this bill. we had a question about that. one in particular is the cost sharing reduction subsidieses. the subsidieses that were the subject of the house lawsuit that they succeeded in the district court level in saying that congress failed to appropriate these cost-sharing reduction subsidies and the administration was spending them anyway. the house prevailed on that's point. still up on appeal to the dc circuit but i say if the new

congress wants the aca individual markets to continue for a couple of years, i would argue they need to appropriate this money. because you cannot take that money out of the system if you're objection is a constitutional one, it is something that you ought to address. now, the challenge is to the two-step approach, are many. first, is passing the budget resolution. the reason why there's no fy2017 budget resolution when we're already coming into the second quarter of 2017 is republicans in the house couldn't agree on spending levels. so the first thing that has to happen is that members have to understand that this is a shell budget resolution which is being passed only for the purpose of allowing consideration of a repeal bill. but i don't think that's a done deal. the second difference that we

all are well aware of, the existential one, least year they were passing a bill they knew the president would veto. this year they're passing a bill they know the president will sign. so that changes the mentality a little bit and brings out potential concerns that james raised in his. thirdly, enacting repeal without replace does fuel the debate that republicans are just tearing everything down and they don't have anything to put in its place. and so all of those estimates about 30 million people losing coverage will become 40 million 50, million, and the stars will begin madly shooting from their spheres. this will escalate the criticism that republicans are not serious about replacing it, and the fourth point is the trump administration. all of this is happening at the time where shortly after the swearing in, when your hoping to get some cabinet members in place, you really don't have

established routines in the affected departments and agencies, not to mention the fact, i don't know that the president-elect has signed off on this particular approach and set a priorities. so, those are the challenges. the one step approach talks about, again, a similar kind of procedure, but says, look, let's package the repeal and replace together. as james points out, that looks a lot less like repeal and replace than it does like amending or fixing the aca, and that may cause some angst among folks, and so it does face some challenges. the first being that for seven years republicans said they're going repeal and it the first thing they do is say, let's wait

in not repeal it until can agree on what replaces it and that's something that could be difficult to sell some members. secondly, i think joe poinds out, it's not the republicans don't have replace bills. it's that they probably got a couple dozen of them. and the problem is there's no consensus around any one of them, and so the question is, will that consensus continue to prove elusive. the third thing is the longer congress waits, the more other things are going to crowd out the agenda. the administration has its own priorities. there's a senate ban division -- ban division, they have to deal with a supreme court nominee, resolution as disapproval against regulations, the continuing resolution expires on april 28th. ...

>> >> but i a thing that is a short to live discussion because by the time we get

to the middle of next year will become apparent that no insurers will be coming into the exchange's it and they will be sitting out in a number of counties in numerous states and they will have to do something to address the yen near-term issue n naturally that will take one of these approaches. if you want to bet with me and i against it, but the two-step approach probably is still the highest priority as of today. but we are handicapping this the lesser is the up one step approach for others who called for that and that nine step approach has ben negligible probability but never bet against the

louisiana legislative branch. but it may be urgency to rescue that hca but when i left this morning i left to come to a warmer climate. [laughter] this is beautiful in with the incoming trump administration. [laughter] and now from what i can understand sitting next to tom miller so the of movie i

would call attention to it is ghostbusters want. remember there are four that capture the ghost to put them in a containment facility in a former new york city fire house there is an attorney for the epa and at one point he comes into the firehouse with utility workers with the container facility they said shut off. but they said you really don't want to do this you don't know what will happen. bad things will occur. he said shutdown. shutdown they shouted down and all hell breaks loose i offer that as a metaphor. [laughter]

now people on my side of the fence face for having this that this opportunity and i do know that donald trump invited romney will to trump tower so let the healing begin. [laughter] but i will focus on and just a few police from our perspective that to feel comfort to have hardening words and promises ended is better coverage and will cost less. and if fact he and have been

then we are good but what stands in the away is by a donald trump a. e. i.. in the levels of coverage and to repeal the of taxes into a flat one and those who do get a the subsidies today is not enough. and refund democratic think-tank. to all those people that

will do coverage that the president would veto last december. and those business people are back in charge. was repealed financing and what comes next so that stance is a the way. another major concern that the president and the speaker yes we will continue but we have heard today from mothers there is the fine print after that. with continuous coverage. and care princess seven

circle of hell of underwriting fee and is gone and based upon prior illnesses are chronic illnesses, engender the they have never been a victim of domestic violence it is gone . if you would get the letter last week they are not hungry for medical underwriting they did not want to go there. so how long is the gap if you 1/7 circle of medical underwriting hell how long tube live there? winona with 28 or 29 million others. there is some number of the of the 20 million and then

the dexterous rush -- the next recession? watery talking about? then there needs to be more on the of level that we talk about to fall into that circle of hell. into have a tougher time. donald trump won with that chronic bill this. and then help the people. and i find it disingenuous to leave out that.

and let's get that out there. for mental-health decisions the ac a is one of the most important to end vance medical care and treatment and access and then to have the substance abuse to eliminate lifetime benefits is incredibly important. so behavioral health is one of the benefits a.m. prescription drugs these are of few of the things that our critical.

i don't know if there is any clear conversation how do you not make this work? and in terms of losing coverage. and dos substance abuse and mental health with the really deep systemic problem the fourth concern hospitals came out and we will give up $155 billion now is $350 billion. and they did that to make

dec commitment and stuck to that. into repeal taxes for those high in comes and with uh drug companies and insurance companies you'll even repealed of taxes at the tanning salon is the most important public measure in bill whole law if you know anything among melanoma. all of those pet hospital of the front-line of the uninsured the will keep those cuts? they sent a letter last week

that said if you repeal this to make the money back it is legitimate but it is partly paid disingenuous. eleven democrats were judged for cutting medicare by budget after budget paul ryan would appeal -- repealed and now also just leave it is opportunistic.

to the unrolled these budget where is the fairness? everybody else is paying taxes. and then coming through. the last thing that i will say. and by the way from the heritage foundation, it was them hickey met to romney and one of my colleagues and bigger things. and up problems of the exchange's and as a former

panel would say i wouldn't challenge that. in that individual warm market and you cannot let that happen. and the state reinsurance program and overnight to california doesn't have a broken market we have a good exchange structure. going haywire in 17.

but these are fixable problems. i spent 13 years in the massachusetts legislature and i learn something. in the senate cochair and i the most difficult things to get done and when we did not like each other we could not even schedule a darn hearing. that is not a systemic failure. and then that would make those permanent. wide is reinsurance adjustment in the exchange's

can somebody explain that to me please? of medicare part d at? [laughter] >> double-a-2 hope you. >> i am supposed to be the moderator there's so many things that want to say and so many comments. >> the level gave you the short answer but what shed be repealed.

in the eighth california you have the exhilarated pays congress provided for the appropriated shortfall according to uh can of the cbo and cns predicted they would make money so when you cannot legally spend the money on reinsurance one through september 29 of this your that was required by law and not distribute to the insurance company.

>> if one is lawful one is not. but 16 years ago of markets of the health care system was a holy mess it was called medicare plus choice now known as medicare recanted. if people took the attitude we would toss whole program out. insurers word dropping out to there was a massive number of counties and a stupid idea off with the head out the door, mostly republicans in 2003 they

fixed it. we think they fixed it too much to create medicare vantage but it was fixed now is healthy have they a good time sailing along. by the way the accusations and with sows problem issues to do all kinds of stuff in the problems in the market bearish it is a political will to get those exchanges going say don't have chaos to revalue the value of the mechanisms with this

particular part of the conversation actually i everywhere if you that the concept of the exchange providing consumer information in a transparent and clear way i am for that but the individual mandate that i would not call exchanges house that is a forest with the tax penalty with that combination to be calibrated. i a agree that could be calibrated to be sustainable but i don't think they did because it had to go way at the because those voted to

bring it down. there is nobody to blame. the. >> because you make of bloody shirt issue. maybe there is the question so how much can that go up in the away to stabilize the market? so what about the political process with that sustainability over time. and then to take some personal responsibility is to have a pathway and if you decide not to have that but under these plans.

to say that insurance is too skimpy the first and foremost, is somebody decides not to have it was are the consequences? they don't get health care? it don't think they want them to do that so there is a huge question of calibration but that with the insurance market reforms , i am not sure that they found out the combination. i will let you respond although we are short on time to bring up the point the level of commitment to appeal is very high.

and to move forward. in a with that point the view. and i do believe that then repeal and replace. on this they watch same candidates trump on the trail with obamacare why is this important? because it seems predicated to replace this big game intimacy and complicated and that is not what they promised.

and that this the answer in the. and to with connective replace. with promising repeal without replace. and with that warning of'' was replaced with politicians and that isn't what they promise. so what is the response to that? >> and the reason why it is repealed and replaces that it is good politics. said repeal of replace was the response that the status

quo was good to hang up the cleats and go home and don't worry about it anymore. but the question is if repeal andrew plays was a rhetorical weapon vice there were plans and a number of different ideas to be considered in of first place. of the delivery negative process because they were organized to force through this piece of legislation. and there was a law more distasteful but the atf was we will jam this through to

what we get otherwise. but my point of repeal and replace so just as a practical manner you tweak the and you save with a political cost to the political party but i don't think it was never at a level of new one sword detail -- nuance or detail as a possibility. because you can repeal the law law. so you will fix the law. in that is not open into do so far. >> a should have given you a chance right away.

the penalties are too low i would counter that. i would hold out the simple of massachusetts. the mandate penalties with those formulation. and with that massachusetts forum to get the insurance down up to 4% in did stayed there through the evolution and what is different for people to buy insurance in massachusetts? in what that had bent for

massachusetts reform. in that comes very low so the problem is not the penalties are not high enough but they are not supportive enough in that is the of place and that is politically salable in the way. in at market has been report -- repaired. that is with the state dollars. but the state had to put him place when the state takes it from one insurer and gives it to another and having said that what we

start to hear all of these panels very softly is one pathway for word is the federal government to usurp the individuals with this small group insurance markets. mendez not working and alaska or montana that the government pulls back. and to use the extent of what the faa california has done. with those health insurance markets and with the life

and now that hca and that might allow for the fact. and in ways that achieve the goals. and to increase the of insurers that maybe it is the state's. >> they could pull me off of the job because iran long. inez saw the hand up first.

and those that are moderating very well but to ask a detailed question with over arching with the affordable care act that is about changing insurance but not health care. so what are those things that could be dead and? and with the replays process? and then to that point because that is a much later conversation.

>> if you look at what congress passed bipartisan to address part d and did you ask yourselves of that model, does that continue and in france is that rejected and throw that out? it seems that it is pretty clear that the directions are set to to a change of transformation. there may be some playing around but a bipartisan victory. >> in that will be the last

question. and something that doug said. and the change happens at the speed of trust. so given that congress has the approval rating. if you lock it up and then it was the other side you were h. sheets and allied air so if you are prognosticating. and it is o k.

and through that process you get the outcomes that the people like. and that speaks to us core of the health care system now and the debates that have been. and that is to get rid of it to come back to the table and all i can think of is lbj and genius and a law of respects. also can he not then vice president and i submit to you the way he exercised power with l. hall host of

liberals down mansfield comes along and could not control it so he takes a step back and focuses on facilitating the process and rich ride to work that out armed the back and according to those honorable sides of the ideal and to have and the futility that no one person in the senate can control that. chuck schumer cannot do that and to let the senate worked its way. and that is the way my system is set up.

[applause] . >> for years reid have worked to stop suffering one of largest 1/2 face as president and is united by that regime from the russian and iranian allies.held wit we have seen a deliberate strategy of starving in this and civilians of humanitarian workers andke medical personnel love was

reduced to a billable. these are all horrific violations send responsibility of the regime and that allies and these atrocities are on their hands. we all know what needs to happen with partial to help coordinate the orderly evacuation. to give full access to issue manager terry and eight to be the world's largest known nader and a brighter cease-fire political rather than military solution.so >> ending the press conference with a hawaiian word for merry christmas

they left washington d.c. to spend christmas in hawaii. while there he will visit the uss arizona at pearl harbor. >> the presidential inauguration is friday january 20. c-span will have live coverage of all of the events. watch live. >> the bill of rights was ratified yesterday marking uh discussion of the role of

america. this is 90 minutes. >> good evening. i am the archivist of the united states whether you are joining us for watching us with our friends from c-span2. since franklin roosevelt first proclaimed that this day has served as a reminder our partner for today's program 21st century is a constitutional sources project. before we begin tonight secession on to say january

january 17 to talk about the new book of the of final mission as a farewell address then over the next two days we will shawl a selection of films from the vault the inauguration and with the monthly calendar of the events are all mine has assigned a sheets and these activities with their

applications for membership in the claimers made and while those of 1789 met recall the bill of rights it was necessary to declare mankind with this constitution. with the 22010 anniversary year to put together a nationwide program of defense to examine the bill of rights with discussions like tonight of the constitutional rights of justice around uh country of educational resources.

we have the opportunity of the outside of washington and d.c. area to minnesota the of bill of rights and will soon be in houston that parchment documented self of the of rotunda for the charges of freedom in nate teen 50 today all charter the institution of the first display together in the rotunda but harry truman declared in my opinion the only a document in the world against his government and

then they become no better than money is so judging from what i have seen they do not consider those charters they ended distinguished panel edges have meaning for us everyday of the executive director of the constitutional sources project. [applause] >> good evening. we have the of privilege as serving as the executive director we are an organization devoted to the history of the '90s states

constitution at his store called documents the ratification and the amendment. so thanks to the archivist of the united states for the introductory remarks and with the special bill of rights day in with the ratification of the bill of rights on december 151791. with those deluges and ideals move agenda and a the press to assemble the of speedy trial by jury and at unreasonable searches and seizures and the rights to bear arms. but the declaration of independence not for most in

to know the history of of bill of rights one out of 10 think that includes the right to own a pet. so before i a invite our panel to the stage we thought it would it be useful with the very brief history from when the document was drafted to give you that history is some babies surprised to learn that it does not include of bill of rights george mason proposed be added prior to the end of the constitutional convention that it was unanimously rejected so that state

declaration said the federal bill of rights was necessary or even dangerous. so with ratification of no bill of rights so the call for the anti-federalist there also interested in the amendments that will alter the power of the new federal government. madison n, the father of a constitution but that was unacceptable. for congress to pass the bill of rights once the constitution was adopted to reject those amendments to change that structure with the state ratifying conventions and buys 1788

the broader value of of bill of rights thomas jefferson said that political truth in the solemn manner to counteract the interest in medicine intended and instead that it goes over to consideration as well send for ratification and that is the tenth the 14 states for those 10 amendments that we now call the of bill of rights.

into explorer that legislative history with the special report that is of mail a law of side of vague auditorium and that is available online on the washington times website. in to welcome to this stage happy bill of rights day. [applause] >> thanks for coming down on one of the coldest bill of rights days in an recent

memory on the anniversary of the ratification thanks for the introduction. and as someone who covers the supreme court and the appellate court and of bill of rights is the great privilege to have those esteem circuit judges that they are on the of frontlines. they are not always self-explanatory. those problems of what they mean in the years ahead. thank you so much for coming out clincher our audience

will appreciate how to think about the of bill of rights and imagine the different ways we might have in us digital era up. so thanks again for coming we will have questions later but we will try to have a conversational discussion about the bill of rights. the lighthouse's issues a law of proclamations and preparatory announcements and the proclamation day and because that presentation looking at what obama had to say about that with his

message he said the syllable liberties under the law for many but those that follow the are ratification and sacrifice to four people and goes onto say and talk about the away the rights were expanded reaching for those ballot workers they remind us our freedom is intertwined you can read it all on the white house website but it it was never inevitable result is people are willing to have those doors of opportunity.

i think about of bill of rights that is frozen in the year 1791 or is it something that is applied differently or evolves nor is there a way to reconcile that original language that perhaps is little different from people like james madison and water we talking about? to bail me have relevance or do they have meaning today? judge come id you have seniority in this group? if so, then with the great distinction is a great responsibility.

>> it is an honor to be here i am grateful to be here with my esteemed colleagues. and of those vigorous debates those judges that has taken place since the framing of the constitution. and what i have developed over time, you use the phrase the bill of rights and frozen in time. i am of the of view there are certain values expressed at the time of the founding of of bill of rights and expresses a definite to view and certain activities and

it is our responsibility to enforce those but not change them. what we are about is not determining the merits of the case for what is right and just and equitable but with is ratified by those of the united states. i am of the school that with those changes made to the law that is the mental process. into make those changes. and with that

responsibility. with of bill of rights or the amendments. and with the dispute at hand. a la the of what i agree with ann to salute those on the brutal night. and then to spring there were a law of state constitutions that the time for ratification and what we have seen in the bill of rights had a very healthy

and robust history in 1791. and if it is interesting so far as they contained prescription aimed the government's relation to the individual. but the tax has not changed and without being too much the facts have changed and technology has brought about the subsequent amendments but face it, of the supreme court decision has changed and all of that informs the of modern-day interpretation of the pragmatic reality and

that seems remarkable to me. >> it is repetitive but don't want to seem not thankful. but it in this day and age the the bill of rights is very succinctly document with these 10 foundational principles. and the words are very st. st. with a due process of law that congress will respect that establishment of religion and you say

those words are frozen in time into the constitutional document with those are the words redo unchains them except that constitutional amendment but to apply those words to us circumstances of the course of 200 years is a i think of it that i a kindly associate in the car could friends make good neighbors. maybe in the human to human context in a van that structure what that bill of

rights is the is the whole constitution that is hugely important the division of

>> is there now an annotated bill of rights that you can say based on judicial interpretations and statutory elaborations that answers pretty much most of the questions that might arise under it? or is there still a great unknown that's related to what those very terse but eloquent words mean? >> we don't need to go finish we just started the seniority -- >> we'll start with this end. [laughter]

>> well, to keep us 'em moyed there are -- employed, there are, and actually as a matter of reality, it is actually amazing how often i've said to colleagues as a practicing lawyer, as a judge to law clerks i can't believe this hasn't been answered by now. and that's because if defenses are written in the constitution, the country itself keeps growing and changing and new questions arise as technologies come along, and what's a reasonable search of a stagecoach versus a reasonable search of a car using gps technology, how to you answer those questions. so it does keep -- the issues do keep changing and coming up in new forms. we, you know, on the d.c. circuit have jurisdiction over guantanamo. something you know about. and how the constitution applies to enemy combatants detained in

land rented by the united states in a foreign country. well, as it turns out, it hadn't been answered when it first came up, and it had to be answered. so there's new applications that arise all the time -- in and as it turns out, the first answer that we gave was not acceptable to the supreme court. [laughter] >> that was before i came along. [laughter] just kidding. so i think it's, you know, it's important that, as you said, we're not here to the ore write the constitution. i don't think any of us want to do that, and and i don't want to live in a country where judge just get to rewrite the constitution at liberty. i think we can see countries like that around the world, and that's not what we want to be. but to struggle really hard and mightily with our colleagues to figure out how it applies is a challenge. >> yeah. on the question of whether all the answers are in, of course, the answer is, absolutely not.

it's remarkable how much hasn't been decided. and it's equally phenomenal how we haven't even thought of so many questions yet. when i, when i teach law school, i often point out with emphasis that it wasn't until 1976 that the supreme court actually decided the question do you need an arrest warrant to arrest the person in a public place. now, you might think considering the fourth amendment and 200 years plus of criminal adjudication that question surely would have been presented well before 1976. but there it was. another simple example under the fourth amendment, do you need an arrest warrant to make a routine felony arrest in a person's home. supreme court said, yes. 1980. and you can understand why law students at the time would

think, wait a minute, surely the supreme court's gotten around to answering that question. so they are, there are lots of fairly obvious questions that we can anticipate but so many that we can't possibly anticipate that are surely if not yet in the pipeline, are on their way to the courts. >> and i have my theory for why that's taking place and why the bill of rights is, therefore, perhaps more relevant today than it's ever been. and that's because we live in a time where there's been this vast expansion of the power of government. right if -- right? and so the bill of rights is supposed to help or -- and as government power has increased significantly over the last 40, 50, 60 years or so, those issues come up. more and more we find that individuals' interactions with the government implicate liberty

interest and other interests protected by the bill of rights. and so that's why i think it's an ever-present issue, ever-present challenge. so it really isn't frozen in time. these really are dusty old concepts by people wearing three-cornered hads. they were alayoff -- hats. they were alive then, and i think in many ways they're more alive today to than ever as we try to figure out what does liberty, what do these other rights mean in the modern setting where the government has such vast power to into every nook and cranny of our lives. >> judge given makes a good point. i'll remind us -- judge griffin makes it a good point. justice rehnquist made it a routine part of his annual message on the judiciary

lamenting the federalization of crimes. it seems that for a decade or more this was always a part of his end of the year message to congress and the people. and that's the point that you're making by your comment, judge. >> if i could also add though, there's another thing, and that's also monumental changes that have happened over time and to whom the bill of rights applies or to whom it protects. as originally enacted, it was -- the anniversary we're celebrating applied its limitations on the federal government only, not the states. and who the people were was a much narrower bunch than it has come to be over time where, you know, both the civil war, power of women and as our society has grown, the number of people and the understanding of its protections and its application after the civil war, most of its provisions to the states.

and so the, it's a bit younger document in that sense. not chronologically, but in the breadth and scope of its application than i think a lot of people understand up front. and i guess the last thing i would say is it's not only the government changes, but i think there must be something about human nature and how we interact with each other because, you know, the ten commandments have been around way longer, and people still fight about that equally succinct document, what it says and what it means and how it applies to their daily lives. as our interactions change, we just keep debating over how documents operate in that context. >> just a little historical note, you know, there's many communities around the country you can see a ten commandments monolith in front of a public building or elsewhere. it actually was, believe it or not, a marketing campaign for the movie, and we wrote about this. there was a, that the fox

studios and the fraternal order of eagles had a great marketing thing where stars from the picture went and unveiled these monoliths around the country. so there's an interesting story there. but that'll be on another night at the archives -- >> like the supreme court cases. >> that's exactly right. involving the first amendment, which we'll get back to. >> can i -- i think something that's worth commenting on has just to occurred in our, in our agreement about something that's very fundamental. so we began by saying we all agree that the role of a judge is to understand what the amendment means and to apply it dispassionately. we all have different backgrounds, we're appointed by different presidents, and that's a view that we all share. that's not a view that is shared universally. there are many in the academy and there have been times in our nation's past where some judges took a very different thought

that the provisions of the constitution were an invitation to judges to construct their own vision of fairness or justice. and that's just not a view that, at least in my experience, that reigns at least on my court or the courts of appeals. and i think it's really important for the american people to know that. the judiciary has, battles over the judiciary are high hi political. but in -- are highly political. but in my experience, 11 years on the d.c. circuit, this is the view of the judges regardless of the president who appointed them. as justice kagan said at her confirmation hearings, it's the law all the way down, right? it's law at every step. it's not, you're not -- judges aren't using their position to advance their own view of what the just society ought to be.

we're doing the best that we can to follow the law as enacted by we, the people. and something judge davis said, i think, is really important in terms of how the three of us go about it. we don't get to look at the constitution, understand its history and decide on our own what it means. because we are, as the constitution says, we all belong to an inferior court, right? it's the supreme court that's the ultimate arbiter, at least as far as we're concerned, of what those provisions mean. and so that means that even if i have a personal view that would differ from the supreme court's about the meaning of some provision of the constitution, stare decisis precedent requires that these three judges here and our colleagues follow what the supreme court says. now, this might be a more

interesting discussion if we were three justices, right? because the rules work a little differently for them. >> there's an opening, i hear, so if you want to raise your hand. [laughter] >> i've never heard a more elegant description of locker in v. new york. i think it was buried in there. >> that's a due process question with. we'll get to that. one point just for the audience for people who may not be versed in legal scholarship, that, you know, in law the later-enacted measure takes precedence over something that came before or at least helps intercept something that came before. and so what the judges were talking about is that you had other amendments like the 14th amendment and subsequent amendment that give, perhaps, another angle to look at prior enacted provisions that initially only applied to the federal government under the bill of rights. and that's -- and because there are suggestions in the 14th amendment about application of the bill of rights to the states

but not a direct command, that's left a fair bit of leeway that we've seen over in the 20th century particularly about how those measures apply. but that's just sort of a background that, yes, it's not frozen, there have been subsequent amendments which in some ways give more meaning to the words that came before and reflected what people saw at the time, if i'm not wrong. correct me if i'm wrong. so -- >> well, the classic example of that, of course, i'm backing you up here, jess, this is no equal -- there's no equal protection clause in the fifth amendment, but there is in the 14th amendment. one of the civil war amendments. and the supreme court -- seems to me correctly -- inferred that the meaning of due process in the fifth amendment surely must include the equal protection guarantee that's more explicit, not more explicit, is explicit in the 14th amendment. so that's iconic -- >> is there a specific thing that would be different,

perhaps, if it wasn't? >> well, if there were an equal protection clause in the fifth amendment, maybe the 14th amendment wouldn't have been necessary. >> could be, could be. but as judge davis, i think you're talking about this case from the '50s where after brown v. board of education found that equal protection of the. >>th amendment -- of the 14th amendment applied to the states. federal government, d.c., federal enclave had segregated schools. could you possibly have a situation where segregation was illegal in all the 50 states but completely constitutional in the united states, in the capital of the united states? that'd be like saying people here couldn't vote. [laughter] so -- preposterous. [laughter] so a little constitutional joke there, forgive me. [laughter] bill of rights day is always kind of a fun day. >> fun day. [laughter] >> let's talk about some of the specific provisions of the bill of rights. the first clauses apply to

religion. the congress can't, as you say, make -- passing laws respecting establishment of religion or prohibiting the free exercise thereof. we've seen those clauses, the free exercise clause, the establishment clause be very important many litigation -- in litigation around the country. they constantly come up. the first words in the bill of rights x yet they still are a measure of dispute over what exactly they mean in each particular case. they apply equally to very established religions like christianity or judaism or islam and newer ones like one from utah which believes in mummify case and had its own alternative bill -- ten commandments that they wanted to put up on monoliths. how do you figure out what those words mean? i mean, establishment of religion to someone in the 18th century maybe meant the

established church of england, right? or the official government church. that's what "establishment" meant. what do they mean now when we have a country with many, many, many more religions, where a government is not in a position to judge and shouldn't with be the validity of one religion over another, where government programs and policies may conflict with tenets of different religions? and all you've got are those half dozen words or what have you in the first amendment to figure it out. how do you even approach a question like that? >> well, this is where the work of organizations like -- [inaudible] comes in to be so helpful. in many ways, it's a matter of history. i mean, we're talking about trying to recover -- not to recover, trying to understand what did the framers intend by that. what was the understanding of the public at the time that the amendment was ratified.

and that's a historical quest. now, we're not historians, at least i'm not a historian. and so we're generalists. but the -- at least as i perceive it, the quest that we're on is a historical -- once again, to identify what is the value that's being protected or expressed and then how does that apply in a circumstance which may be very different in some ways than it was before. at least that's how i approach it. i start with the history of the matter. >> well, and i would say first of all, you know, you have to start with the whole text. that's one thing. so it's not just an establishment of religion, it's laws respecting an establishment of religion, so we have to figure out what respecting means as well as what an establishment means and what religion is. sometimes that becomes an issue in its own right.

now, we're the lucky ones, we aren't taking the first cut at this document. it has been interpreted by many judges and justices before us. and so in addition to history, we look at what, in particular, supreme court has said those words mean and the lines that it has sort of drawn, how it's said where the fence hall lie. and that at least -- shall lie. and that at least gives us a framework for trying to figure out how it, how the next step, how the next link in the chain is supposed to go when you see dividing lines that they have drawn, what is okay and what is not okay. now, that is, you know, an ongoing -- it is a work in progress in the sense that new decisions are always coming. but i always find it really helpful to look at those decisions and study them not just for what they held in their case, but the reasoning and principles that they give, sharing their ideas on what

those historical documents say and what the line was that the bill of rights meant to draw there. what's the word that it used. >> and i think interpretation also draws on the ongoing dialogue that takes place between the people and the courts and especially between congress and the courts. and particularly in the first amendment context, congress has spoken drawing on what congress believes those words mean or should mean, because congress has a voice in the interpretation of the constitution and the bill of rights every bit as much as the courts do. although courts, the supreme court is the last word. there are lots of other words out there to be spoken in the effort to draw meaning from these, from these words. so i think that hearkening back to your earlier comment there is

this dialogue that goes on that, as i say, plays a role in figuring out what those words meant back then and what the practical application of those words are or should be today. >> if i could add, we as judges -- people don't come to us and say, wow, here's an interesting constitutional question, what do you think. we have, this is knot in the constitution, an adversarial system of justice in which -- this part is in the constitution -- cases come to us, we're passive in the sense that we don't reach out to decide issues. people have to come to us with, in terms of the body of the constitution, cases or controversies. and they present the dispute through, you know, their lawyers and will tell their story. here is the problem. here is the conflict.

here is its impact. here's what it means. and that gives some real flesh to, literally, some real flesh to what the dispute is and evaluating how is the government operating on this individual. what impact is it having on their religions that gives us a concrete framework in which to take those precedents, take those historical documents and apply them. and so i think it's different than some other countries where, of course, we have a much more, you know, what do you think role and offering advisory opinions as is often referred to. we courts have a much more circumspect role in that sense which is consistent with, as judge griffin's explained, the fact that we're not elected and we're not writing a constitution. we're here to solve problems that people have. >> and this religious liberty issue dramatizes in high relief

the currentness of the controversy over the meaning of the bill of rights. look at something remarkable that's happened in my lifetime. back in 1993 the congress of the united states unanimously passed a bill called the religious freedom restoration act. president clinton signed it with great ceremony in the rose garden. it was, he considered, one of his signal achievements. there was unanimity about -- it was not a partisan issue. here we are some 30 years late persian it's a very partisan issue. the phrase "religious liberty" itself for many a code phrase for bigotry. the same, effectively the same bill that was passed unanimously by congress causes a great deal of controversy in states today. i'm just mentioning that to say how fluid the situation is and how alive these phrases are.

you were saying it's not -- these things aren't settled. they're very much alive, and, you know, the courts today and in the coming years are going to be faced with these issues about what does religious liberty mean today in the marketplace, in the public square. and it's a fluid situation. >> yeah. i mean, because we're talking about, you know, we're 15% into the 21st century, we've got a bit to go, do you have any thoughts on what are the questions, you know? i'm not asking for the answers, but what are the questions, maybe more specifically we're going to see in terms of establishment of religion or free exercise of religion? what do you think might be coming down the pike when we look at -- >> doesn't take a crystal ball on the free exercise. it's the tension between our national commitment to nondiscrimination, right, to equal protection and our

national commitment to freedom of religion. and how that, how that plays out. i think that's, i'm not a prophet, but that's an issue that's not -- it's right in front of us now. i think on the free exercise side of it, that's the -- >> right. and i think, you know, for the audience when you think about what is exercise or free exercise of religion mean, one of the ways this issue has come up has been the supreme court recognized same-sex marriage. a lot of americans have religious objections to it. to what extent did they have to through their commercial activities support or at least serve same-sex marriages? that's one of the issues we've seen mainly as a state court issue under state anti-discrimination laws. but, you know, what is that boundary. but one can imagine many other types of questions coming up over the century ahead about, you know, new, different

religions having objections to different things that could arise and drawing that line is something that's hard. and i guess, you know, so that's certainly one we're going to see, and that is interesting in that the supreme court has really enunciated a right that was not recognized before. and it's caused, you know, a reaction. what about -- >> [inaudible] >> sure. >> because i think it is not a linear with process. we don't say, okay, this year let's deal with the first amendment. we can march through it here, but that's not how it works. so what happens is you had the religious freedom restoration act was in response to one supreme court decision contracting what had been a prior understanding of the free exercise clause. you've got that going on, and you've got -- at the same time, there may be changes or shortly thereafter changes in the scope of the equal protection clause and roles of states versus federal governments getting changed over here. so there's lots of pieces

getting interpreted all the time by the supreme court. they're marching through all different amendments, a variety of amendments every term, and it's how those pieces come back together that themselves create new issues. synergies that come out of this as we keep working our way through our constitution and how it applies to our lives. so that's what can create new issues that before didn't seem to come up because the understanding and interpretation the supreme court has given us has changed. >> and here, in my view, here's the good news and the bad news. the good news is the constitution seems to be a part of almost every political discussion that takes place in any election. and it's fashionable, and i know julie's got her pocket copy of the constitution, and i think judge millett has hers -- >> i did, i brought -- >> i've got a bigger version, but it's fashionable in washington amongst politicians to have your pocket

constitution, and that's great. the more education, the more discussion we have about the constitution, the better. that's the really good news from my vantage point. the bad news, it isn't easy to understand. these are tough issues. and as judge millett said and judge davis said, they're set forth in spare language, language, much of which was written in the 18th century. we don't talk that way today, so there's just the rhetorical challenge of reading old language. but more than that, we have courts and individuals who have struggled with these for years. and to try and understand the historical setting, to try and understand the development of the issues as they've developed over the years, it's not, it's not easy. it's not easy work. it's hard work. but, you know, we can to hard things. that's the the, that's what citizenship is to be about.

but i offer that just because i'm -- as a citizen and even as a judge, i'm a little bit wary of folks who come before us in court and say this is clear. it's easy this way. it's not. they're difficult issues, and we just identified one, the competition between nondiscrimination principles and religious liberties. those are tough issues. and they need to be resolved by thoughtful citizens and, hopefully, thoughtful judges, because they're big challenges ahead of us. >> and you can even get them within the first amendment. there's been many, many cases about competition between free peach and free exercise of religious -- free speech and free exercise of religious. all three clauses coming together and when is the free speech of religious groups, is there a risk when public, when government recognizes that, are they then establishing a religion? be and are they discriminating

against the speech of other people? is so even within amendments themselves, they can start trying to figure out where those lines are. it becomes a quite complicated task. >> that's exactly right. and what you're hearing a description of, of course, and you know this intuitively is a clash of values, a conflict in values. as a country, as a society, as a democratic family -- small d democratic -- [laughter] we have a number of values that come into conflict. and, indeed, as you've just heard from my colleagues, many of those conflicts arise themselves within the context of bill of rights guarantees. and it is hard, it is hard. it requires hard work on part of judges, and i think part of what this program is about, it requires hard work on the part of is the citizenry -- of the

citizenry to do the work as best you can given where you are to understand the document in the bill of rights guarantee so that you are an informed citizen and can be a part of that dialogue to which i referred earlier. >> let me ask you about one of the things, and we took, you know, that i think is really foremost on people's minds as we think about the top thetic tonight which is the -- topic tonight which is the effect of technology on these different rights that we see. for example, you know, the first amendment refers to freedom of the press. well, in the 1790s the press was a thing made out of wood with metal pieces, you know, little letters, and you knew how to twist it, and it pressed a, you know, printed a page. now, what is the press? anybody, would, you know, their phone and twitter. we talk about, you know, all, you know, the freedom from search and seizure in the 1790s. a search was, you know, the red coats grabbing you and having, and looking through your pouch,

you know? and what a searching now can be, you know, some algorithm in a server sitting somewhere or in a satellite, you know? how, how do you reconcile these massive technological changes that by their very scope may change, there may be, you know -- does the quantity of change affect the quality of the right or the protection? >> well, the genius of the founders, and and i use that word advisedly because as justice marshall was wont to say and you heard it echoed in jess' summary of the president's statement today, the constitution was just a remarkable document, but it wasn't perfect. and there's no perfection in human endeavor. and justice marshall used to say th