with andrea mitchell that on the specifics of the president's assessment of success against terrorism and against isis, this president is not close to reality. so republicans are going to continue to bring forth the issues to the american people of what reality is like in the world in spite of the way the president may address it. because of the specific failures of this president and his foreign policy. you know it is interesting mr. president, last night in the state of the union the president started by saying that the state of the union is strong. and mr. president, the state of our union is strong. but president obama mistakenly took credit for that strength. he implied that it was because of his policies, because of his actions. on that point this president could not have gotten it more wrong. the state of our yoonunion is strong

because of the strength of the american people. americans are resilient. americans are hard working. and in the november elections the american people showed that they can act decisively. you know it is interesting mr. president, this morning headline "new york times," "staunchly liberal wish list brushes off gop's gains." head line, "new york times." bright bold, above the fold. staunchly liberal wish list brushes off gop gains. so we are a resilient nation. people know what they believe. they know how they feel. they voted those believes. and when the american people chose republicans to lead both houses of congress they said khalil they want a change from barack obama and a change from the direction he has been taking

this country. people want democrats to start working with republicans to get things done. american people have said they are tired to the grid locke. tired of the dysfunction. tired of democrats running the senate to protect their own jobs and not caring about the jobs of the middle class american. president obama had a great opportunity last night. an opportunity to show that he understands what americans have been telling him. instead, he went out and he gave the same speech that he always gives. it was a partisan attack on republicans and the americans who voted to put the republicans in charge in the house and in the senate. you know, it's interesting listening to the commentary after the speech. wolf blitzer, cnn. he said i don't remember a state of the address where i heard a president issue so many veto threats to the opposite party in

the united states congress. andrea mitchell saying in terms of foreign policy's the president's views are not close to reality. wolf blitzer e cnn, i don't remember where i've heard a president issue so many veto threats to the opposite party in the united states congress especially at a time as the "new york times" points out of gop gains in the elections. the president specifically ignoring what's happened across this country in the november elections. president obama seems to have missed the november elections entirely. republicans know that we have an obligation to the american people. to deliver effective, efficient and accountable government. we have an opportunity and an obligation to put americans first. last night president obama showed he still wants to put washington first. well republicans are not willing to help this president

continue down the same wrong road that the american people have rejected. and let's be honest. this past election was a rejection election. rejecting the policies of this president, this administration. we are charting a new course, in a better direction. and we are already making progress. the senate is working like it hasn't worked in years. we are debating actually legislation on the floor -- >> to see all of the senators remarks go to c-span.org. we leave you to take you to boise state university and a speech by president obama he'll be talking about some of the proposals in last night's state of the union address. live coverage. ♪ hello boise state.

[ cheers and applause ] it's good to be back. can everybody please give camille a big round of applause for that introduction. [ applause ] i love young people who are doing science. and i especially love seeing young women in sciences. and so -- [ cheers and applause ] -- i'm very proud of what she's doing. couple other people i want to mention. your mayor, mayor beader is here. where is he. flew back with weme on air force one. he didn't break anything. it was amazing though. when we were coming back he was

telling me the story about his grandfather, an immigrant from the bass region coming here. and how he would herd sheep. and for five years he would be up in the mountains in the hills and then come down to town for like two months a year and then the rest of the time he was up there. i figured his dad was a pretty tough guy. because i'll bet it gets kind of cold up in the hills. another person i want to mention, this is somebody who i actually have known for a really long time. he was lieutenant governor in illinois now is your outstanding president here at boise state. president costra. give him a big round of applause. there he is. [ applause ] it's good to see illinoisans do something with their lives. we're proud of them. thanks to all the broncos for having me.

[ cheers and applause ] and thanks nor the balmy weather. i thought it was going to be a little colder around here. so last night i gave my state of the union address [ cheers and applause ] and today i'm going to be shorter. it won't be too short. just a little shorter. and i focused last night on what we can do together to make sure middle class economics helps more americans get ahead in the new economy. and i said that i'd take these ideas across the country. and i wanted my first stop to be right here in boise idaho. [ cheers and applause ]

now, there are a couple reasons for this. the first is because last year michelle and i got a very polite letter from a young girl named bella williams whose here today. where is bella? right there. wave bella. she's 13 now but she was 12 at the time. she wrote me a letter and said i know what you're thinking. wow, what's it like in boise, idaho? so she invited me to come visit. and she also invited me to learn how to ski or snowboard with her. now, as somebody who was born in hawaii where there is not a lot of snow, let me put it this way. you do not want to see me ski. or at least the secret service does not want to see me ski. but what i do know about boise is that it's beautiful.

i know that because i have been here before. i campaigned here in 2008. [ cheers and applause ] it was really fun. and the truth is because of the incredible work that was done here in idaho it helped us win the primary and, you know, i might not be president if it weren't for the good people of idaho. [ applause ] of course in the general election i got whooped. i got whooped twice in fact. but that is okay. i've got no hard feels. in fact that is exactly why i came back. because i ended my speech last night with something that i talked about in boston just over a decade ago. and that there is not a liberal

america or a conservative america, but a united states of america. and today i know it can seem like our politics is more divided than ever. in places like idaho the only blue turf is on your field. and the pundits of washington hold up these divisions in our existing politics and they show, well, this is proof that any kind of hopeful politics that is just naive. but as i told you last night, i still believe what i said back then. i still believe that as miles per hours we -- that as americans we have more in common than not. we have an entire industry that is designed to sort us out. our media is all segmented now.x

so that instead of just watching three stations we got 600. and everything is market segmented. and you have the conservative and the liberal stations. and so everybody is already listening to what they already agree with. and every district is either one thick orthing or the other. so there are a lot of institutional forces that make it seem like we have nothing in common. well, one of the great things about being president is you travel all across the country. and i've seen too much of the good and generous and big-hearted optimism of people, young and old. folks like bella. i've seen how deep down there is just a core decency and desire to make progress together among the american people.

that's what i believe. [ applause ] >> so i've got two years left. i am not going to stop trying to make our politics work better. that is what you deserve. that is how we move a country forward. [ cheers and applause ] and idaho, we've got big things to do together. i may be in the fourth quarter of my presidency. but here at the home of the team with the most famous statue of liberty play in history -- [ cheers and applause ] -- i don't need to remind you that big things happen late in the fourth quarter. [ cheers and applause ] so here is where we are starting in 2015.

our economy is growing. our businesses are creating jobs at the fastest pace since 1999. our deficits have been cut by two-thirds. our energy production is booming. our troops are coming home. [ applause ] we have risen from recession better positioned, freer to write our own future than any other country on earth. but as i said last night, now we've got to choose what future we want. are we going accept an economy where only a few of us do spectacularly well? or can we commit ourselves to an economy that generates rising incomes and opportunities for everybody who's willing to try hard? [ cheers and applause ]

>> now for six years we've been working to rebuild our economy on a new foundation. and what i want people to know is, thanks to your hard work and your resilience, america is coming back. and you will recall when we were in the midst of the recession -- right after i came into office -- there were some arguments about the steps we were taking. there were questions about whether we were doing the right thing. but we believed we could reverse the tide of outsourcing and draw new jobs back to america. and over the past five years our businesses have created more than 11 million new jobs. we believed that with smart energy policies we could reduce our dependence on foreign oil and protect our planet. today america is number one in oil production and gas production, and wind production. and every three weeks we bring online as much solar power as we

did in all of 20u082008. [ cheers and applause ] and meanwhile, thanks to lower gas prices and higher fuel standards, the average family this year should save about 750 bucks at the pump. [ cheers and applause ] we believed we could do better when it came to educating our kids for a competitive world. and today our younger students have earned the highest math and reading scores on record. our high school graduation rate had hit an all-time high. more young people like folks right here at boise state are finishing college than ever before. [ cheers and applause ] we figured sensible regulations would encourage fair competition and shield families from ruin. and prevent the kind of crises that we saw in 2007, 2008. and today we have new tools to

stop taxpayer funded bailouts. and in the past year alone about ten million uninsured americans finally gained the coverage they need including right here in idaho. [ cheers and applause ] now, sometimes, you know, you think folks have short memories. because at every step of the way we were told that these goals were too misguided. or they were too ambitious. or they crushed jobs. or they would explode deficits or they destroy the economy. you remember those, right? every step we took. oh this is going to be terrible. and instead we've seen the fastest economic growth in over a decade. and we've seen the deficits as i said go down by two-thirds. and people's 401(k)s are stronger now because the stock

market has doubled. and healthcare inflation is at the lowest rate in 50 years. [ applause ] lowest rate in 50 years. here in boise, your unemployment rate has fallen below 4%. and that is almost two-thirds from its peak five years ago. [ applause ] so the verdict is clear. the ruling on the field stands. [ laughter ] middle class economics works. expanding opportunity works. these policies will keep on working as long as politics in washington doesn't get in the way of our progress. [ applause ] you know we can't suddenly put the security of families back at risk by taking away their health insurance. we can't risk another melt down on wall street by unraveling the

new rules on wall street. i'm going to stand between working families and any attempt to roll back that progress. because today, thanks to a growing economy the recovery is touching more and more lives. wages are finally starting to go up. more small business owners plan to raise their employee's pay than at any time since 2007. so we need to keep on going. let's do more to restore the link between hard work and opportunity for every single american. that is our job. that is our job. [ applause ] let's make sure all our people have the tools and the support they need to go as far as their dreams and their effort will take them. that is what middle class economics is. the idea that this country does best when everybody gets a fair

shot. and everybody is doing their fair share. and everybody is playing by the same set of rules. with e don't we don't want to just make sure everybody shares in america's success. we actually think that everybody can contribute to america's success. and when everybody is participateing and given a shot, there is nothing we cannot do. [ cheers and applause ] so here is what middle class economics requires in this new economy. number one, it means helping working families feel more secure in a constantly changing economy. it means helping folks afford child care, and college, and paid leave at work, and healthcare, and retirement. and i'm sending congress a plan that is going to help families with all of these issues.

lowering the taxes of working families, putting thousands of dollars back into your pockets each year. giving you some help. [ applause ] number two, middle class economics means that we're going to make sure that folks keep earning higher wages down the road. and that means we've got to do more to help americans upgrade their skills. and that is what all of you are doing right here at boise state. you know you heard camille's story. she a mechanical engineering major. she a great example of why we're encouraging more women and more minorities to study in fields that traditionally they haven't always participated in in math and engineering and science and technology.

well, she's done research for nasa. she's got real job experience with industry partners. she is the leader of your micro gravity team. and by the way she's a sophomore. by the time she's done she might have invented time travel by the time she's done here at boise. but the point is i want every american to have the kinds of chances that camille has. because when we've got everything on the field that is when you win games. . i mean think about if he had as many young girls focused aspiring to be scientists and astronauts and engineers. that's a whole slew of talent that we want to make sure is on the field. [ applause ]

so we've been working to help more young people have access to and afford college. with grants and loans that go farther than before. and when i came into office, we took action to help millions of students cap payments on their loans at 10% of their income. so that they could afford to let's say take a research job after graduation and not be overburdened by debt. that's why i want to work with congress to make sure every student already burdened with loans can reduce your monthly payments by refinancing. [ applause ] but there are a lot of americans who don't always have the opportunity study someplace like boise state. they need something that is local. they need something that is more flexible. you got older workers looking for a better job. or you got veterans coming back and trying to figure out how they can get into the civilian workforce.

and patients trying to transition back into the job market, but they have got to work and pay the rent and look after their kids. but they still want to make something of themselves. so they can't always go full-time at a four-year institution. and that is why i'm sending congress a bold new plan to lower the cost of community college to zero. [ cheers and applause ] to zero. the idea is in the new economy we need to make two years of college as free and as universal in america as high school is today. because that -- that was part of our huge advantage back in the 20th century. we were the first out of the gate to democratize education

and put in place public high schools. so our workforce was better educated than any other country in the world. but the things is other countries caught up. they figured it out. and they looked at america and said why is america being so successful? their workers are better educated. we were in the cutting edge then. now we've got to be pushing the pound ris boundaries for the 21st century. and just a like we pick up a tool to build something new, we can pick up a skill to do something new. and that is what you're doing right here at boise. every year you sponsor hack fort. which for those of you who are not aware this is a tech festival that brings the community together to share knowledge and new skills with one another. and i know we've got some folks from some of boise's dozen or so tech meetups here today. here at boise state, innovation

is a culture that you are building. and you are also partnering with companies to do two things. you help get the skills employers are looking for and you help skills that help you on the job. so it's progress. as well as being good for the students. and that is why my administration is connecting community colleges with local employers to train workers to fill high paying jobs like coding or robotics. as well as traditional fields like nursing. and today we're partnering with business across the country to up skill america to help workers of all ages earn a shot at better higher paying jobs. even if they don't have a higher education. we want to recruit more companies to help provide apprenticeships and other pathways so that people can upgrade their skills.

we're all going to have to do that in this new economy. but it's hard to do on your own, especially if you are already working and supporting a family. now, as we better train our workers we need the new economy to keep churning out high wage jobs for workers to fill. and that's why the third part of middle class economics is about building the most competitive economy in the world. we want good jobs being created right here in the united states of america, not someplace else. [ cheers and applause ] and we've got everything it takes to do it. you know, just to go back to bella's question, wow, what's it like in boise idaho? well one of the answers is, you are the cutting edge of innovation. i had a chance to tour your new product development lab. and i got toe say this was not

the stuff i was doing in college. so one group was showing me how they 3-d printed a custom handle that a local student with developmental disabilities could access his locker independently without anybody's help. but this whole 3-d printing concept was creating prototypes so that if you have a good idea you don't have to have a huge amount of money. you can come and students and faculty are going to work with you to develop a prototype that you may then be able to sell as a product at much lower cost. another group's working with a local company, recluse, to manufacture parts for high performance motorcycles. now that excites vice president biden. i might bring him with me next time i come to boise. [ cheers and applause ] some your faculty and students

are working with next generation materials like graphene, which is a material that is thinner than paper and stronger than steel. it is amazing. and the work you do here is one of the reasons why boise is one of our stop cities for tech start-ups. [ applause ] and that means, you know, we shouldn't just be celebrating your work. we should be investing in it. we should make sure our businesses have everything they need to ib innovate, expand in this 21st century economy. the research dollars that leads to new inventions. temperature manufacturers who can make those inventions here in america. the best infrastructure to ship products and the chance to sell those products in growing markets over seas. a free and open internet that reaches every classroom and every community so this young generation of innovators and entrepreneurs can keep on remaking our world.

[ applause ] now, those of you who were watching last night know that i made these arguments before congress congress. most of these are ideas that traditionally were bipartisan. i was talking to bob. bob was a republican lieutenant governor. but i'm not sure he'd survive now in a primary. but the ideas i just talked about, those are things that traditionally all of us could agree to. i mean after all the state we come from, illinoislincoln. and he was the first republican president and he started land grant cottages and the built railroaded and invested in the national science foundation.

and he understood that this is whether it takes for us to grow together. but watching last night, some of you may have noticed republicans were not applauding for many of these ideas. they were kind of quiet. but when it comes to issues like infrastructure and research, i think when you talk to them privately, you know, when they are not on camera you know they generally agree that it is important. you know educating our young people, creating good jobs being competitive -- those things shouldn't be controversial. but we're -- too often we run onto the rocks. where the debate starts getting difficult is how do we pay for these investments? because it requires dollars. the labs here and the infrastructure that we need, you know, those things don't just pop up for free. and the private sector which is the heart beat of our economy,

it doesn't build roads. it doesn't create ports. it doesn't lay down all the internet lines or the broadband lines that are required to reach remote communities. so we have to make some investments. we got to figure out how to pay for it. and as americans we don't mind paying our fair share of taxes, as long as everybody else does. [ applause ] where we get frustrated is when we know that lobbyists have rigged the tax code with loopholes. so you have some corporations paying nothing, while others are paying full freight. you have got the super rich getting give aways they don't need. and middle class families not getting the breaks that they do need. so what i said last night to

congress -- what i said last night to congress is, we need to make these investments. we need to help families. we need to big middle class economics. and here is how we can pay for it. let's close those hooploopholes. stop rewarding companies that keep profits abroad. let's reward companies that are investing here in america. [ cheers and applause ] let's close the loop holes that let the top one or point one or .01% avoid paying certain taxes and use that money to help americans pay for child care or college or healthcare. and let's truly have a code that helps americans, the vast majority of americans get a leg up in this new economy. [ applause ] and that is what i believe in.

that's what ii believe in. i believe in helping hard-working families make ends meet. and i believe in giving all of us the tools we need so that if we work hard we can get good paying jobs in new economy. and i believe in making sure that our bids are strong and competitive and making the investments that are required. that is where america needs to go. and i believe that is where americans want america to go. and if we do these things it will make our economy stronger, not just a year from now or ten years from now but deep into the next century. now, i know there are republicans who disagree with my approach. i could see that from their body language yesterday. [ laughter ] and, you know, if they do disagree with me then i look

forward to hearing from them how they want to pay for things like r&d and infrastructure that we need to grow. [ applause ] they should put forward some alternative proposals. i want to hear specifically from them how they intend to help kids pay for college. it is perfectly fair for them to say we've got a better way of meeting these national priorities. but if they do then they have got to show us what those ideas are. and what you can't do is just pretend that things like child care or student debt or infrastructure or basic research are not important. and you can't pretend there is nothing we can do to help middle class families get ahead. there is a lot we can do.

[ cheers and applause ] some of the commentators last night said well that was a pretty good speech. but none of this can pass this congress. but my job is to put forward what i think is best for america. the job of congress then is to put forward alternative ideas. but they have got to be specific. it can't just be "no." i'm happy to start a conversation. tell me how we're going to do the things that need to be done. tell me how we get to "yes." i want to get to "yes" on more young people being able to afford college. i want to get to "yes" on more research and development funding. i wampbt to get to "yes" for

first class infrastructure to help businesses succeed. i want to get to "yes". be you got to tell me. work with me here. work with me. come on. don't just say no. [ applause ] you can't just say no. [speaking foreign language] si se puede yes we can. we often times disagree, that is the nature of a democracy. but we don't have to be divided as a people. we are on the same team. [ cheers and applause ] you know when the football team divides up into offense and defense, you know, they probably go at it pretty hard during

practice. but they understand, well we're part of the same team. we're supposed to be routing for each other. if a quarterback controversy arises, there is a competition. i'm going to be fighting real hard to get that starting spot. but if i don't get it, i'm going to be routing for the team. [ applause ] you know, whoever we are, whether we are republican or democrat or independent or young or old or black white gay, straight. we all share a common vision for our future. we want a better country or our generation and for your kid's generation. [ cheers and applause ] and i want this country to be the one that shows the world what we still know to be true -- that we are not just a collection of red states and blue states. we are still the united states of america. [ cheers and applause ] that is what we're fiteghting for. that is what we're pushing for. and if you agree with me, then

join me and let's get to work. we got a lot of stuff to do in this new century. thank you, god bless you. god bless united states of america. ♪=úzw 1 hour and 10

minutes. [ applause ] >> well good morning everyone. welcome to our heritage audience and also as john said welcome to our c-span viewers. we all four just came from the u.s. supreme court, where they actually heard arguments this morning about this case. williams-yulee versus the florida bar association. this is the first case the court has heard oral arguments in a campaign finance issue since last year when they heard mckuchin versus ftc and in that case threw out aggregate limits in contributions on federal campaigns. this case is about state elections, not federal elections. and it's a case about this particular issue. florida, like two dozen other

states that have candidates running for judgeships, that have judicial elections, bans personally soliciting political contributions. in this particular case, a judicial candidate in florida williams-yulee sued after she was disciplined by the state bar association because she signed a letter that was mass mailed out to voters and was also posted on her campaign website. she claims that this solicitation ban is a violation of her first amendment rights to engage in political speech especially since the state does not ban judicial candidates such as her from knowing who gave to their campaign, and doesn't ban them from actually sending thank you notes to the individuals who contributed. the bar association argues that this ban is necessary to ensure the impartiality of judges, and

to prevent the actuality and appearance of corrupt influence on their elections, and that the ban does not violate the first amendment. i'm going to introduce the three panelists we have here today. i'm very honored that they on very short notice agreed to come here. i'm going to introduce all three of them and then let them speak. we're going to start with james bob. james filed an amicus brief on this case for lawyers who ran for judicial offices in arizona kentucky, indiana, wisconsin and kansas. from his offices in terre haute, indiana, he has made his mark as one of the premier campaign finance and first amendment lawyers in the country. he's the general council for the james madison for free speech. he has littleigated many important cases. i can't list them all, but they

run from the right to life to the mccutchen case. he's a member of the national board of governors, as well as numerous other organizations. in 2011 npr called jim bob the country lawyer who has done more than anyone else over the years to upset the status quo in america's political money law. i don't always agree with npr, but i think that's a pretty good assessment. second we're going to have actually justice randall shepherd speak. he's a former chief justice. and in 2006 led the conference of chief justices. when he became the chief justice of the indiana supreme court in 1987 he was the youngest chief justice in the united states. when he retired he was the

longest serving chief justice in the nation. he authored more than 900 opinions for the court and has published more than 64 law review articles in 53 different journals. he has also served on the board of many different organizations and commissions was a trial judge and federal official. in 2009 he received the dwight d. award from the american judicator society. finally, we'll have robert cornrevere speaking. on behalf of the aclu. he's a partner of a firm that's a lead inging lawyer in the nation. the supreme court sided the amicus brief he filed in 2012 for the reporters committee for

freedom of the press in the stolen valor act case u.s. versus alvarin. he's the national chairman of the adjunct scholar at the cato institute. the 2014 kenneth b. mclaughlin award of merit from the national press photographers association. we're going to start with jim bob. and jim you can either sit there or come up here, whichever you'd like. >> is this okay? all right. thank you. the consensus is, we'll sit. in my view this case is the latest in the many chapters in the struggle over the proper role in the courts and our society. our constitution conceives of the judiciary of having a very limited role. that is interpreting and

supplying constitutional provisions and statutes to the facts of an individual case. state court judges have a similar role with respect to state law an application of state constitutional provisions, and state statutes. to the facts of an individual case. however, state court judges also have a very robust role in developing the law. which federal judges do not have, since the decision in the '30s. the federal judges got out of the business of determining federal common law. however, state judges in all but one of the states have a very robust role in developing that law, subject to legislative enactment. so even with respect to state court judges, they have a limited role. they are not supposed to accept in the development of the common law. they are not supposed to impose their own personal policy

preferences on what constitutional rights exist within the state constitutions, or how -- what are the proper statutes that ought to exist to regulate people's conduct. now, since the jack soedyun era when popular sovereignty became the watch word and this was reinforced by the abolitionists, every state that has formed a state judiciary has provided for popular election of those judicial officers. and that is because the people who wrote those state constitutions believe that if you had the judges accountable to the people not to for instance, the governor or the political elites that we would ensure that the judiciary would be faithful to their limited role of interpreting and applying the statutes, and

constitutional provisions, and would similarly develop the common law in a way that would favor the people not the political elites. well, this idea of popular sovereignty and responsiveness to the people, and ultimately accountability to the judge's limited role came into conflict in the progressive era with the thinking at that time, in the early 1900s, and of course, the progressive era rejected the whole idea of popular sovereignty, and in fact believed quite strongly in the rule of the people by the elite, and by specialists, who knew better than the people and could create a better society. so as a result of that thinking, the popular election of judges came under attack.

while this attack was reinforced in the modern era the modern progressives, the liberals more commonly known, who believe in the idea of a living constitution. they reject the idea of a fixed understanding of the constitution and statutes based upon what the meaning of the words were, and the intent of the framers. but view the constitution much more, and often statutes, in a much more flexible way which allows the judges to pour into the constitution their own personal policy preferences and ultimately endorsing a liberal agenda. and we've certainly seen in the federal system, and in a few states, but certainly in the federal system examples, perhaps numerous examples where the courts have not been faithful to

the constitution, and have implemented the liberal agenda. so, we have a concerted attack on the idea of a limited role in judges, faithful to the constitution. and that has resulted into efforts. one effort has been to eliminate election of judicial officers in the states. about as far as they've been able to get is in about a dozen states where they have merit selection, meaning selection of judicial officers through some sort of panel appointed by the elites in the political system, and then a retention election, which is not a real election at all in most instances. secondly secondly, is to nullify campaigns in elections. and this began in 1924 with the first judicial code of ethics which severely limited the ability of candidates for judicial office to participate

in their own elections. that included things like the announced clause which prohibited judicial candidates from announcing their views on political and legal issues. it also included prohibiting the solicitation of campaign contributions. well limiting campaigns for elections, of course, ran right up against the requirements and the protections of the first amendment. because political speech is at the core of the first amendment. and, of course the first amendment prohibits any laws that would abridge the freedom of speech. and what they meant in that instance, in the first amendment, was campaign speech. and of course, these were severe limitations on judicial candidates' ability to participate in normal campaign activity. well this conflict between the first amendment and these judicial codes of ethics culminated in the 2002 case of

republican party of minnesota versus white which i was privileged to argue before the u.s. supreme court as lead counsel for the republican party of minnesota. and there it was the announced clause prohibiting judicial candidates from announcing their views on disputed legal and political issues that was before the court and in a 5-4 decision the court struck down that canon. they fully applied the first amendment to judicial races, even though there was a very vigorous argument on the other side that judicial elections should somehow be exempt from first amendment protections. or that there were sufficiently compelling interests that would allow such direct draconian limitations, essentially limiting judicial candidates to talking about their resume. well after the white case, numerous canons of restricting campaign activity of judges has

been struck down while in most instances -- by the federal court -- while in most instances state courts have upheld the restrictions, which now brings us to the case before the court which was one of the original 1924 limitations on solicitation by judicial candidates of contributions to their own campaign. ironically, the 11th circuit which covers florida, struck down an identical georgia canon that prohibited personal solicitation by judges of campaign contributions, while at the same time the florida supreme court upheld the canon. that is certainly one of the reasons why this case is now before the supreme court. numerous circuits had struck down such judicial canons while many state supreme courts had upheld them. well, this is a substantial

restriction. it is known that the candidate for any office, whether it be judicial or otherwise is the most effective fund-raiser for his or her campaign. and such restrictions of personal solicitation of judges of campaign contributions can be expected to substantially reduce the amount of money that can be raised by a particular candidate. now, significantly, it should be understood that this canon really only restricts the candidates, him or herself from raising money. which handicaps the candidate if independent groups decide to get involved in that election, and of course they can raise funds without limitation and restriction. it means that the candidate him or herself, has much less money to deal in an environment where

you have independent spending. so it actually victimizes judicial candidates ultimately in this competition. so that's the kind of lay of the land. and now we will hear from the others about the validity of the particular canon at issue. >> judge? >> thank you. i'm delighted to be here today. i have four points to make. and some reflections on what justices ask, and what the -- what answers were given an hour or so ago. i want to begin by posing the question, or making the point that this canon in fact doesn't touch very much. what does it leave unfettered? well, candidates are unfettered with respect to their ability to speak on issues, or

qualifications, or ideas. unfettered is what the court in shomberg called persuasive speech. left unmolested is how much money a candidate can raise or spend. none of that is touched by this canon. and likewise, untouched is the whole realm of independent expenditures. so as one or two justices asked this morning they said where's the beef? most of the things that we identify as political speech aren't covered by this part of canon 7. put it another way, is this really core speech, yes or no? and i put it to you that the difference between, i stand for thus and thus, vote for me or my qualifications are such and such, you should elect me, the difference between that and give me money is relatively easy to seef.

see. and that's what this case is about, as justice sotomayor, for example, indicated. it's a request for a financial transaction. connected to the larger election to be sure but acknowledged, i think finally by the petitioners to be of a different character. second, lawyer and judge speech really are different. again, acknowledged this morning by the petitioners. there are plenty of places in society where first amendment notwithstanding we compel people not to say certain things or we compel them to say certain things. this is easy to see in the world of finance, for example. you can't put out a securities offering without including certain information, or you won't get registered. there's a penalty for doing that.

lawyers and judges consent to these requirements when we decide to become members of the bar in the first instance. so that there are ways in which a lawyer's speech is limited. a lawyer can't stand in front of a court and knowingly speak falsely about the record, or about the fact. he may not end up in jail, but he's certainly going to have a problem with his law license. and he ought to. and the same is true with respect to judges. now, does the first amendment apply to these situations? yes. white and caperton tell us that it does. and what we're really about this morning, the court was about this morning, was finding what parts really matter, and how should the court draw that contour for people who are engaged. one of the differences that was discussed this morning was the fact that there are federal laws and federal rules that apply to

people like congress and federal judges. and those are really quite serious. members of congress are prohibited from soliciting campaign contributions from federal employees. well why is that? is it the same reasons that were lifted up this morning for this rule about judges directly soliciting lawyers or people who might be in court applying there? just as kagan said, why is it -- why does my canon have to fall? she's rare in this field, for a federal judge to lift up. what does this mean for us? mostly they talk about state judges as if we were from some foreign country. [ laughter ] but justice kagan this morning said, why would it matter to anybody if i solicit money from my old law school?

i think i know which one she had in mind. why would that really matter? and of course, the petitioner hard pressed had to tell her that it was the same. but she was on a track that really mattered. there are some certain solicitations, if you, for example, solicit a federal employee for a federal official, the law compels you to speak it compels you to tell the federal employee that he or she has the right to say no. compelled to an affirmative act. the difference this morning that i think was recognized between the -- not only between lawyers and judges and other office holders is pretty important including the one that one of the differences between people like governors, senators members of the house of representatives, legislators, is that we expect them to be instrumentalities of our wishes. we vote for them because we think they will do certain

things that we believe represent good policy. judges hope, we hope our people will instead read the law and look at the facts and do the best that human beings can do to give an impartial answer. now, i think that the case law on this, one could pick out a piece, or another piece, and decide this case in either direction. which leads me to the larger point, what is it we'd really like to have in our courts. what do we want to discourage and what are we willing to encourage. and i put it to you that today's argument, and several other cases brought along these lines, are that we want judges to be more like the political branches. now, we used to have that in this country. we had judges who were part of the political branches.

and it is according to thomas jefferson, one of the causes of the revolution to get judges out from under, and aside from the people in the executive and legislative branches many times against whom citizens were litigating in the first instance. and if one decides that you'd like that, striking down this canon is an excellent start. the former chief justices from alabama and texas told us what you get when you leave this unfettered. their briefs record, for example, a judge's e-mail sent after election to a lawyer who had donated to his opponent saying, now that it's all over, i hope you will join in my campaign fund to the same extent of the $2000 you gave trying to defeat me in the election just

past. oh, by the way, there are many places in which late payment doesn't incur an upcharge. another example in which a texas judge wrote, saying to a variety of law firms all the big firms have maxed out. and if i'm going to get the kind of money i need, i need your firm to max out as well. and as several judges today said, harder to say no when that request comes directly from the sitting judge. somebody who you think might be a judge. now, there are worries about this rule? one of the great debates is the briefs, not quite as much this morning, was, does this cover too much or not enough? and not every court solution has

to solve every single problem. such as chief justice roberts, for example. what would be wrong with calling my old pals from schooling? our impulse is to think, what's the corruption in that? then you parse it out and say how old is old how pal is pal how far off do i have to be before i'm in the zone of safety, is the question that the solicitor would have to answer at her peril. and likewise, on the question of -- over breadth or inclusiveness, as justice kagan said today well, so you've demanded that they do more, florida isn't tough enough, that's why it's unconstitutional. they're trying to be narrow, to be restrained in what sort of speech is prohibited.

and you're criticizing them because they haven't covered every jot and tittle. so the question is what sort of judiciary do you want to have? and maybe it is that's one of the great questions this morning was was -- you create in the judge a a -- an impulse to pay off later, to do the quo for the quid. i thought it was a very inciteful point made by one of the members of the court. and one could do that, right? i mean, rand paul gave a speech a week ago in which he said is we want more judges in this country. contrary to usual form, right? we want more activist judges.

why is that? the reason is because legislators do bad things. and activist judges will strike them down under the bad things clause, no doubt, that got left out of my printing of the constitution. [ laughter ] but these things happened, in the last election cycle, the person who was running for the supreme court of ohio spoke right after, and on the sam platform as governor kasich, and said, if you believe in what governor kasich stands for, you've got to put me on the ohio supreme court, because i'm his backstop. that's not the america that led thomas jefferson to say that bringing judges aside from the rest of the government was a reason for the revolution. but it is a possibility. i mean, you could decide that that's what you wanted, where judges would do what the elected branches wanted to do. i once asked bob borick whether

a judge who was elected should feel freer to make policy. not just in common law, but freer to make policy through constitutional law or statutory interpretation in a way consistent with the judge's own policy preferences. and bob borick gave, in a sort of classic forum, what i thought at the time was a rather flippant answer. he said why would the taxpayers pay for that twice. [ laughter ] by the time i got home, i decided that was a pretty good answer. it struck me as a little odd at the time but it was if anything, a fiscal conservative answer. fourth and finally, on overbreadth, not enough, i want to say that the only person who filed a brief in this case who actually said, i think the following would be constitutional, was jim bob.

most of the other amicus lift these up as sort of tantalizing possibilities. what if a mass letter went to only 50 people? what if is what they usually say. but jim bob said, solicitation in the courthouse can be prohibited consistent with the first amendment. and -- now that draws the line a little farther over than i would draw it. but he had the courage and sense it seems to me as an advocate to say, there are some things here that can be prohibited. and most of the people arguing this case don't do that. they sort of put that over somewhere else. here are the things we would be willing to say. and frankly most of the arguments seem to me most of the briefs most of the amicus briefs, i don't really think they would stand for approving most of the alternatives that they lift up as possibilities.

and the same is true with respect to recusal. there was almost no discussion of recusal this morning. but it's very common in the briefs. there's an old saying, well, that's a more narrowly tailored solution if you get a judge that's not impartial, because he or she has received, or solicited, i guess, contributions. there are two problems with that. one is when to know when and where the solicitation occurred or one simply sent out of the good graces of the donor. by definition happens beyond the view of the rest of the public. but the real problem with it is, that if the campaign contribution is designed to promote the sort of speech and the sort of judicial decision that the donor wishes then

recusal makes the election a fraud. it also places in the hands of litigators a handy tool to get rid of judges in front of whom they think their case might not go as well. that is to say, you might want to be sure you contributed to shepherd, so that at the right moment, you'd get an exit card. or you might want to make sure that to take a look at who your opponent contributed to so that you could use that against him or her. very difficult to figure out. in any event, thank you for the invitation. i look forward to the conversation. >> bob? do you want to finish it up? you were one of the people who filed an amicus briefs. >> first of all, i want to thank the foundation for inviting me to be on this panel. i'm humbled to be in the presence of these other speakers. and thank you for your kind introduction. i should begin by saying i did

file an amyicus brief for the aclu today. i'm not speaking today for the aclu but someone who participated in the case in that way. the views today and all the mistakes are entirely my own. first of all, a little bit of background in context. this case comes 13 years after the supreme court decided the terrific decision in republican party minnesota versus white jim bob's terrific victory in 2002. struck down judicial conduct canon that prohibited candidates for judicial office from announcing their views on disputed legal or political issues. we are five years almost to the day after the decision was handed down in citizens united. so there'sóbfl a lot of interest in which this case comes to the court. i should also say, it's not, as any of the cases that the

supreme court grapples with it is not an easy case. the circuits are split on this. they've struck down canons like this. the third and the seventh circuit have upheld them. all the state supreme courts have looked at canons like this and have upheld them. it's no surprise this is going to be a case that the supreme court is going to have to wrestle with. and the arguments that we witnessed this morning i think, are pretty good evidence of that. now, i have to say that for the roberts court when chief justice ascended to the court in his confirmation hearings talked about trying to seek greater unanimity in the court. there's a lot written about that. and i think you can see some movement in that direction in recent years. as recently as the 2008 -- october 2008 term. only 33% of the court's decisions were unanimous. that number has gone up fairly

consistently over the years. between 2009 and 2012 it was in the mid-40s. last term, two-thirds of the court's decisions were unanimous decisions. so you can make of that what you will. but it means that there is an effort by the court to try and make sense of the law in a way that can achieve some kind of consensus. that's not going to be the case today, i'm afraid. just listening to the arguments today and looking at this area of law. the political campaign cases that have come to the court in recent years have not been unanimous decisions. 80% have been decided by 5-4 decisions. and so it is an area that does divide the justices. and i think that again, was evident in the questioning today. in this case, there were 17 amicus briefs filed 14 supporting the petitioner 14 supporting the state of florida. so there's a lot for the court to consider.

now, the issue itself is an interesting one. i don't think it's as simple as sometimes the state gets to prohibit some kind of speech, sometimes it gets to mandate some kind of speech, so why not here, it's just a little bit of speech. we're talking here a direct restriction on what candidates can say in political speech. it's the kind of speech that historically the supreme court has said the first amendment places the strictest limits on the government's ability to restrict what candidates can say. and the issue that the court isolated and made clear as a prevailing principle in the white case that jim argued, was that if the state decides to have judicial elections, then it has a very limited ability to limit what candidates can say. it doesn't have to choose elections. the federal system is not based on elections. states have chosen most of them have, to elect their judges.

and with that comes the constitutional right to be a candidate. and having made that decision then it creates these really complicated questions about where you draw the line what kinds of restrictions on judicial ethics are permissible, and which ones are not. in this case, the question is whether or not the restrictions adopted by the state of florida make any difference at all. justice shepherd said we're not talking about limiting what candidates can say on the issues themselves. they can say all of that. they just can't ask for money which is, by the way, one of the things many candidates do. but, you know, nonetheless there's a lot that florida doesn't restrict. for example canon 7-c-1 while it prevents candidates from making direct appeals, in this case a mass fund-raising letter, it doesn't prohibit the candidate to get persons to manage the expenditure of funds

and to obtain public statements of support for his or her candidacy. they're not prohibited from soliciting contributions. you can send the exact same letter out. it's just that if you sign it as the candidate did in this case, she can be subject to sanctions. she can be made -- in this case she was given only a letter of reprimand, and required to pay costs. but nonetheless, you know, the campaign can still send out that message. now, you might ask, what's the problem then? the campaign can still be funded. the only problem is the candidate can't speak. the problem there is the first amendment. if you're going to pay a first amendment price, if you're going to restrict what people can say, then you have to show that the government is actually serving the interest that it's designed this restriction to serve. and in this case, the problem

is a candidate is prohibited by florida from saying please, nothing prevents the candidate after the committee asks for a contribution from saying thank you. the candidate can know who gave the campaign. they can -- i suppose hold a barbecue for everyone who contributed to the campaign afterwards. all of the same dynamics that are described as corruption still happen. you simply don't have that candidate signing that initial letter. and so you're penalizing people for speech for no purpose. and that was the line that the justices i think were trying to get at today. how can you adopt a regulation that actually serves some kind of purpose, without adopting a regulation that goes too far in restricting speech. and i think there were a lot of questions that got to that. many questions involving what about the thank you note. but none of them that really

honed in on where that exact line is. and i think that's where that close division among the justices in this area is going to play a significant role. again, it kind of depends on how important you think first amendment is in regulating campaigns. i've always been a little confused about this area myself. when i think about other areas first amendment law usually if the regulation doesn't serve an interest, then it's invalid. even under less judicial scrutiny. if the restriction on advertising doesn't actually prevent the problem, then that restriction is invalid. the same is true in pretty much every other area. but it seems like the operating principle underlying most people advocate various kinds of campaign restrictions is political speech is far too important to be free.

and i've just never understood that principle. i guess the only other thing that i would say is that there was a question that justice

ginsburg asked early in the argument argument, would the first amendment prohibit a congressional candidate, for example, to ask a donor to contribute to the campaign. and doesn't this mean then that there are certain restrictions you can put on judicial candidates that you can't put on others. i should back up and say that, as preswer, how differently can you treat them? how far can the state go in restricting these kinds of appeals? and can we adopt these restrictions basically for their symbolic value, that we want judges to be different? i'll end on the question justice shepherd asked, and what kind of judiciary do you wanted to have. my own personal answer to that question is, i want an elected judiciary, and you don't have these problems. different people may answer that question differently. but i think the root problem

isn't that we have to figure out which of these fine-tuning measures is going to be the right one, i think the answer is, we take politics out of it entirely. at least electoral politics out of it, and you don't have candidates that are judges. >> thank you. i'm going to come up here and we'll take questions from the audience. since we have plenty of time. i want to hone in on something that you talked about a bit and that is that, you can really see in the questioning this morning and it was particularly questioning by justice breyer and justice scalia honing in on the fact that it was very clear that justice breyer thought there was something really different, more coercive if the judge is actually doing the solicitation. whereas, it was very clear justice scalia and some of the other justices thought that well, if the whole idea of -- is to avoid quid pro quo

corruption, how are you going to do that when the candidate, not only can write thank you notes to those who have given them letters, but can actually give a list to his or her committee of who they should contact to do that. is that a -- do you think that's a really crucial issue in how the justices are going to decide this case? >> i think it points out how difficult it is to really claim their significance here as far as the distinction that the -- that florida is trying to draw. because florida would allow a letter that says the following. i'm a personal friend of the judge who has asked me to serve as his chairman of his campaign committee. he has given me your name to ask that you contribute, and i'll, of course, be reporting to him. and if you contribute you'll be -- not only will the judge

know, but you can expect to receive a thank you note from him for giving the contribution. now, is there a constitutionally significant difference between that letter and the judge writing a letter and saying, you know, this is judge joe blow i'm running for judge i would appreciate a contribution from -- for my campaign. because the message is the same. that is the solicitation. and is it really so different that it is from a candidate's campaign chairman, in the way i described, and the other? so this is you know, it reminds me of you know, angels dancing on the head of a pin. of course, the context is, the first amendment applies to this activity.

justice shepherd kind of pooh-poohed it that candidates soliciting contributions, but there's two things about that. number one, by far it's the most effective solicitor of a candidate's campaign is the person him or herself. and that's regardless of what the person is running for. it doesn't matter whether it's for judge, or for senate or for governor. i mean come on, think about coercion. how about the gubernatorial candidate looking you in the eye and saying would you mind contributing to my campaign. you know, if we view, you know a judge that you may not ever appear before, and a gubernatorial candidate, and you have a business in the state who is more persuasive? if that's what we're really talking about. again, it's really hard to draw these distinctions. and the -- and that's why the

first amendment context matters. this is core political speech number one. it's exactly what the first amendment had in mind, and the founders and the writers of it when they wrote the first amendment was, campaign activity and campaign activity including solicitation, and it's by far the most effective means to raising money for your campaign and what is that money for, doing speech. about your campaign. and i think the reason that it was prohibited goes back to the fact that those -- the people by and large, and not exclusively, but by and large who support these restrictions do so because they want to shut down elections. and so they know this is important. to have a candidate actually make the solicitation. and by prohibiting it it is a big hit to that campaign and to the campaign of all judges for

judicial office. it goes toward ultimately driving campaigns out of judicial elections, and thereby nullifying what people want. and that is the kind of judges that are restricted to their roles, and it seems to be necessary to have judicial elections make the judges accountable to the people to make sure they are restricted in their roles. >> i was going to say, it's interesting that for two people filing a brief seeking the same outcome in this case there's so much we disagree on. [ laughter ] but i think the point that you isolate is the same thing that troubled the justices this morning, and that is that the candidate himself is the most effective person for appealing for funds. and this is the thing that bothered justice breyer in particular. it also bothered justice

ginsburg. that is saying there is an inherent coercive power when a judge asks for money. this is the point he made through a number of questions. this is the kind of thing that the state is trying to prohibit here. and if in fact the candidate is the most effective person in asking for money that would be one reason for that. another could be many reasons why that might be true. but to me that suggests that there is something -- an interest here in preventing judges from using their roles to gain in the electoral setting. on the other hand, when you look at what is allowed when you look at the fact that the best friend who happens to be the campaign manager can write the same letter and send it, and send a list, and then the judge can write thank you notes and be aware of who contributed arnd more importantly who didn't contribute the canon does

nothing to support the interest of what florida is trying to resolve. all it does is restrict candidates' speech. when it comes to whether or not the regulation is overinclusive, underinclusive, i don't think it can survive constitutional scrutiny, but i don't think that you need to do nothing simply because the judges themselves are the most persuasive money-getters. i mean i think that's the problem that florida is at least trying to solve. >> i suggest that if florida had a rule that put the hammer down on all the places where you say it doesn't now your client would be in the same posture that your client was in today, which is arguing that none of those should be tolerated under the first amendment. i thought one of the interesting things about today's argument was justice scalia's repeated references to dignity.

and back in old-fashioned america, we used to think dignity was worth something. that it mattered. that the people that we placed in office, or in other positions of trust, could be seen in that way. in most of this litigation, dignity has been not just this case, but in the field in general, dignity has been brushed aside as having no consequence of any value. and indeed, in most of these briefs, i wouldn't say most there are a number of amicus briefs in which the claim is made that public confidence is not a particularly compelling state interest either. which is sort of second cousin to that idea. it seems to me that what justice scalia might do is connect the notion of dignity to the entitlement to due process. that's what's at stake.

it isn't sort of whether it's thank you notes, or good bad or indifferent. it is whether you create circumstances under which individual litigants can walk into the courthouse and not worry in ways they shouldn't have to worry about whether the judge who's going to decide the custody of their granddaughter is somebody who's going to be influenced by the fact that the last time you went to the lawyer on the other side and asked for $1,000, you got it. the people who walk into court knowing that don't feel very good about justice in america. and that's one of the things this canon is designed to keep from happening. >> i would like to ask justice shepherd two questions. one is what is undignified about soliciting campaign contributions? in other words, are all our senators and all our congressmen and governors and our presidents, all a bunch of undignified people because they have to -- because they solicit

campaign contributions? i don't think there's anything inherently sordid or nasty about soliciting a contribution. and of course, particularly when we're talking about in this case, just signing a mass letter. so -- >> what do you think about that? >> well i do think that it's hard to argue that dignity has constitutional value. that's why i don't usually use it. and it struck me as unusual that it seemed to be an issue for him. because it doesn't get any traction in this setting. i will say that if you were to ask most americans would the nation be better off if all the judicial elections looked like congressional elections all the big money spending by special interests in the running of attack ads, wouldn't we be better off if america had that in the judiciary too? americans would probably say no. i think i'd rather take a different approach.

>> and i agree with that. i think they don't like campaigns generally. and so if you say, we're going to have more campaigns they'd say, oh how horrible, because they don't like campaigns generally. but if you ask them, as the aba did in 2000, if you ask them this question, which judges are more fair and more impartial which i think are the judges we want, fair and impartial, which are more fair and more impartial, judges that are elected, or judges that are appointed? what they said, three-fourths of them said, elected. in other words, the kind of judges were most likely to get are people that are elected. and i think that's because the american people feel inherently

that if our public officials are responsive to the people, not to the elites and the big-shots and the people down inside the beltway, or our equivalent of the beltway, you know, then we're going to have more fair and more impartial judges. >> go ahead. then we'll take a question from the audience. >> my brief answer to the question of judicial dignity which is interesting because justice scalia kept coming back to it, and i thought was a very interesting point, but if you're really concerned about judicial dignity, doesn't make them candidates. why in the world would anyone think that's a good solution, to take up the hypothetical that you raised, do you really want to judge if the lawyer on one side contributed to his campaign. well, you have that anyway. the judicial canon does nothing. the candidates are going out and raising money. the only thing that the canon in florida changes is they don't sign the letter at the bottom

asking for that contribution. they still solicit the contribution and still get the contribution and still know who gave the contribution, and they still say thank you at the end. so the problem isn't, you know, the fact that you can actually make a direct appeal by sending a mass fund-raising letter. the problem is you're allowing these people to be candidates. the question of having elected judiciary or having an unelected judiciary, i thought that was the checks and balances. the last thing i want is a judge when i go in to argue a constitutional case and base the opinion on whether or not he thinks it's going to affect his chances of being elected. i would prefer to have a judge that is vetted for his qualifications, and is committed to the principles of hearing the constitution as he or she interprets it. i think elections get in the way of that. >> that's going to have to be

another debate we have perhaps another session on elected versus appointed judges. i have to tell a very quick story. i used to be in-house corporate counsel. i handled litigation all over the country. inevitably in the states where the state judges were appointed, the local lawyers would complain to me about how terrible the judges were, because they were all people who were friends of legislators and the governors. then i would handle cases in states where judges were elected, and inevitably the local attorneys would complain about the judges saying oh these terrible people that got elected. now, we have to take a question from the audience. anyone? john? if you would, please please make it a question and identify yourself before you ask the question. >> john malcolm here at the heritage foundation. in any kind of election restriction, whether fund-raising or ability to speak, is it designed to benefit the incumbent.

so i'm interested if there are any questions today asking the perspective of what happened to somebody who is challenging a sitting judge. >> that question came up. >> justice ginsburg asked how does it play out as far as networks, and inequality of income and so on. and i've forgotten -- >> justice roberts too. >> yeah. the best answer was, if you really want to favor incumbents set them loose to do face-to-face or direct contribution requests. there's the place where nobody can say no. and that the restraint on direct request is a rule that helps the nonincumbent, even if you thought leveling the playing field was a first amendment right, or something. you'd have to get there somehow. but yes, who does it favor, it seemed to me not much evidence

evidence -- no evidence on either side. jim bob and i agree completely who's the best fund-raiser, it's the candidates. that's why people from the hill have separate offices to go down separate hours each week and start making the phone calls that have been teed up for them. because they have a success rate that's a lot higher than the best friend who tells them that i'm going to tell the candidate that you gave. >> and of course, everything he just says is right, except this. which i think makes the critical difference. if there is no campaign at all, who wins the election. the incumbent or the challenger. the incumbent. with no campaign, somebody who's already in office has a huge benefit of being in office. they get free news media, they get an office, and a staff, and a travel budget and all this. and they've already demonstrated

that they have enough popular support to get elected the first time. so they've already been through a campaign. they have a list of donors. they have a campaign team. in other words, all the advantages go with the incumbent. the only way a challenger can meet that is raise sufficient money to compete. so that's why the incumbent, you know no campaign we win, and that's why money matters much more to the challenger than it does to the incumbent. so to the extent that you make it more difficult for the challenger to raise money, like you can't solicit it does disproportionately affect one of the candidates and that's the challenger because their job, much more than the incumbent, is to raise sufficient funds to overcome the incumbents advantages anyway. >> i agree with that. if you turn everybody loose, the

incumbent is still going to have an advantage. but the incumbent is going to have an advantage anyway. so the only possibility of leveling the playing field although i don't think that's a legitimate state interest in the campaign context, but the only way that the challenger has any hope is if they aren't restricted in their ability to solicit campaign funds. >> every case produces one angry and disappointed litigant and one ingrate. [ laughter ] >> i would say the reason that incumbents mostly win is mostly we don't have judicial elections. there isn't formal gerrymandering as for congress and state legislators. the fact of electing people by district mostly means that whoever won is whoever that party's nominee was. and the number of actual contested elections is pretty

small. >> yeah? >> thanks. i'm ken doyle i'm a reporter from bna. i just wanted to ask ifbna. just wanted to ask if the panelists agree that the decision in the case is likely to be another 5-4 decision as most of them are in this area. with justice kennedy as the likely swing vote. and if that's the case, is there any way to tell where justice kennedy will come down from the argument this morning? >> yeah, we should mention that at one point i think justice scalia said we only need five votes. >> well, we had a conversation about that on the way over. early in the argument justice kennedy was testing the petitioner on hypotheticals that had to do with how mass is mass and how direct is direct.

and one on one, that's okay. how about two on one? if there are three people in the room, does that count? and he ended up by saying, well, then we're off 209to the races, aren't we? by which he meant we're going to get quite a pattern of fine gradations. i took heart from that and so did jim bobb. i don't know what to tell from it. it seemed to me that he -- i took it to mean that he recognized the great difficulty of having judicial opinions work out -- how about maybe not inside the courthouse on the steps. how far away from the courthouse does it have to be in those would be the things you end up with if you say, well, context is all, florida hasn't gone too far, not far enough, or go work it out is what i got from that

very opening question. >> you can't help but look at thee things through your own experience. justice kennedy has been in the judicial speech cases particularly white in 2002 he was the most absolutist in that case in terms of the ability of judges to talk about issues. in fact, it was interesting because i actually supported a limit on judicial candidates' speech. that while they could talk about issues the general judicial philosophy, whether or not particular cases were rightly or wrongly decided, what they could not do i thought, consistent with the first amendment-s announce their views -- i'm sorry. is pledge or promise certain results in a particular case. in other words they could say

roe v. wade was wrongly decided. a case coming up. an anniversary very soon. wrongly decided or rightly decided in their view. but what they could not say is and when i take judicial office if roe v. wade comes before me i'm going to strike it down. in other words, that's promising how you're going to exercise your judicial power in the future. i thought that kind of promise, even though a legislator could make it or an executive officer somebody running pour executive office, could take ma promise. someone running for judge has two roles. the other role is to decide cases based on the law and the facts at the time of the decision is to be made. not promising how we're going to do it in the future. justice kennedy took me to task in oral argument over even

suggesting there could be that limit on judicial candidates' speech. he then wrote a concurrence to explain that would be unconstitutional. that limit itself would be unconstitutional. in this case i do think that consistent with the application of other laws to campaign activity that there could be limits on judicial candidates. we said in our brief, and you added me on this, justice shepard -- >> you stand on this alone. i congratulate you for doing this. you were more persuasive because of it. >> well, i do believe it. federal candidates are prohibited from soliciting campaign contributions on federal property. you remember al gore was caught

raising campaign cash in his vice president's office and he was taken to task for that because that violated federal law. i think similarly -- and i think that's a very sensible time place, and manner restriction. similarly i think a judge could be prohibited from soliciting contributions at the courthouse. for the very same analytical reasons. it's the time, place, and manner restrictions. and really we shouldn't be using our taxpayer money to fund a candidate raising campaign cash. i think also they could be prohibited from soliciting people that have cases in their court. just like even though a judicial candidate including a judge --

he could be talking about cases that are before him or her. and that's a separate canon. similarly, we could raise contributions from people and solicit them but you should not be soliciting people that are actually in your courtroom or having cases in your court. he this make sense because there are similar limitations in other areas regarding campaign activity and they really eliminate the real ones where there is a potential abuse. and even though the canon here applies to everybody a candidate for judicial office

cannot call up their mother and ask them for a contribution. or they will be disciplined. people they don't know. people that live in other counties and would never have a case, even other states and foreign countries. they can ask people that can never appear before them. it's so ridiculously broad for really no logical reason. these boil to down to those where they say well, there might be some abuse here and i think those could be limits. >> unfortunately we don't have time for more questions. but if everyone could thank our panel, we do appreciate you being here today. [ applause ] thanks for coming to heritage. >> the house takes up a

restrictions bill this week. and we're joined by lauren french of politico who's covering it this week. what's the significance about the house taking up an abortion bill this week? >> well, this is the march for life event rally in d.c. that a lot of anti-abortion advocates come to d.c. it's also the anniversary of the roe v. wade decision that made aborgsz legal. there's a lot of significance for republicans to vote on the measure this week. republicans see this bill. it's a bill banning abortions after 20 weeks. as a really common sense proposal. they argue this is a bill legislation that the bulk of americans can get behind and they wanted the bill to go forward smoothly to put them on a very good path to talk about abortions' national scale and move past some of those gaps that we've seen in the past. >> as we begin our conversation, you're just tweeting out that republican leadership is facing a revolt from gop women on the 20-week ban bill over the rape

extension and showing a picture of rene elmers who's behind this revolt. and what are they really concerned about? >> so we're told that about 25 women have been meeting with the republican leadership this week and expressing their concern that the rape exemption or the exemption included in the ban mandating that women report their rape to the police is too harsh to be included in the law. obviously not a lot of -- there is a bulk of rape victims who don't go and formally report their rapes to police and they're worried that by including that -- or not including an exception for women who don't report the rape that the bill could just be overly harsh. >> you reported earlier that rene elmers and jackie wilorsky had backed out pulled their names out of the sponsorship of the bill. did you get any response from gop leadership? ? they're considering changing the language now. yesterday they told jake sherman and i that they were not going to be changing the languages but now facing a bill that could fail they could only lose 27 republicans before the bill does

fail. they're reevaluating their stance and wondering if a change to that los angeles is best. >> can they do that now that the house has gone forward and approved the rule for debate? >> they could go forward and change it. they would pull that bill vote on a new bill, vote on a new rule, and restart the process. so it's possible that if they do change the language the vote doesn't occur tomorrow as planned. >> at least from the speaker's press conference it sounds like they're going forward or calling for passage of the current legislation. speaker boehner voting the house will vote on protecting babies, a policy supported by the majority of americans. also katherine clark a democrat saying i'm urging the house to reject an extreme anti-choice bill set for the roe v. wade anniversary. take us back to a similar measure the house passed last week. in terms of democratic support it had some last year. what about this year? >> this year unlikely to see vast amounts of democrat