congress convenes in an historic joint session is now the the american people have spoken at town hall meetings and by these petitions, is washington, d.c., listening? . stay tuned, but make no mistake about this. in this cause, republicans in washington, d.c., are on the side of the american people, and we are on the side of freeing our health care now. thank you. [applause] >> thank you, mike. in my office, when we get a letter or an email or a call, we assume there are at least 100 people who feel the same way. this 1.3 million probably represents at least 130 million americans, probably a lot more than that, as we see the polls around the country.

this is to the american people, where people are standing up collar around the country, not just about health care, but about freedom of borrow, spending the debt that we are accumulating. they do not like the direction of our country. and they are standing up. they are speaking out, and they are going to take their country back. a big part of that effort has been these folks behind me and all out in the country, radio talk shows you are increasingly more informed, using intermission from blogs, fox cable and other cable television. people all of the country are more informed, more engaged, country are more informed, more engaged, more outraged and more activated. tens of thousands of people who

are coming to washington this week. to let their voices be heard. when americans stand up and speak out, there's nothing we can't do. there's nothing more important right now than to fix what's broken and keep the best health care system in the world. thank you. >> governor du pont, thank you so much for bringing the petitions to washington, d.c. during the month of august, the american people's voice was undeniable. to those that held town halls and those did not that the american people asked questions about what this health care proposals would mean. and quite simply, i think it boils down to three questions. boils down to three questions. what is the role of gove what is the promise that government would make when they engage themselves in health care for all? we look up and see where

massachusetts, a small state has tried same or similar. they are $9 billion in debt. and it crowds out their responsibilities to public education and public safety and other essential elements that government must perform. secondly, the relationship that a doctor would have with their patients. this is something that every single person has understood is really not a privilege but a right. we understand that the government would be making decisions instead of a patient and that wonderful doctor who they had chosen. and lastly, the question as it comes to how will we possibly pay for this when america is engaged in the largest unemployment in 26 years? we need to have a plan to make health care better, but not one

where government would become the responsible party in a position that they cannot sustain in the long run. so to hugh hewitt and mike gallagher, we say thank you, not only to the american public, but for bringing this message so loud and clear to washington, d.c. we get it. thank you. i'd like to at this time if i could to introduce one of the leading idea makers in the united states congress. he's a republican from arizona, my dear friend, john chadic. >> thank you, pete. i want to begin by thank you governor du pont and thanking dr. john goodman. he's been in the trenches of this fight for years and the work he's done has made this effort possible. this is a unique moment in american history. it's a unique moment because the people are actually speaking out and making their voices heard

over 1 million of them took the time to read this petition, to understand the health care debate in america and to speak out. and as mike pence said, the question now is, is washington listening? now, let me make one thing clear, you may have been told that health care is complicated. and you may say to yourself, what does free our health care now mean? it means one thing. one thing that will change health care in america that doesn't exist today and is the cause of all of our problems. you know what that one thing is? patient choice. in america today, the vast majority of health care is bought by your employer for you, he or she buys a plan, you don't get to know what's in that plan until after the purchase has been made. the plan hires a doctor, you don't get to pick that doctor, the plan picked a doctor, your employer picked the plan, and you're out of the equation.

if you're unhappy with its service, too bad. if it mistreats you, too bad. if it denies you care that you think you're entitled to, too bad. you get to go to your employer and complain. that is not the way this economy works on any other issue. we have a series of four demands on the petition that really comes down to this. if we put the american people back in charge, let them make choices, then the insurance market will have to respond, costs will come down, and quality will go up. and we as republicans -- you bet -- we as republicans say there is an agreement on some of the critical issues. i hear people say what about pre-existing conditions and what about the uninsured? every republican bill introduced in this congress, whether it's jim demint or tom coburn or tom

prices, every single one of those bills covers preexisting conditions and ensures that those people can get health care at the cost of everyone who doesn't have a pre-existing condition. and everyone of those bills, go get them, go read them, covers every single american, every single uninsured american. and you know what we do? we don't put them in a government program, we give them choice. the same choice we want for our health care. it's now my privilege to introduce a leader on health care, and a leader of conservatives in the house, dr. tom price of georgia. >> thank you so much, i'm so pleased to join my colleagues and friends around the nation to accept the 1.3 million signatures on these petitions to talk about one of the most important issues facing americans today, and that is whether or not the government will be making health care

decisions. and as a physician, i know that when i would treat my patients that one of the things that would make them the most angry is when they understood that it was either the government or insurance companies that were making decisions for them and they weren't able to make on behalf of themselves or their families. it's either the government in charge or the insurance companies in charge, right, you all have heard of that? the fact is there's a better way, the right way, a correct way, and that's a third way that puts patients in charge. patients and their families in charge. others have mentioned there's positive solutions and we've put them on the table. we've put solutions on the table that will make sure every single american regardless of their financial status has the wherewithal to purchase insurance they choose. we put solutions on the table that solves our preexisting challenge and the portability challenge. you ought not lose your insurance if you change your job

or you lose your job. there are ways to solve that doesn't put the government in charge. we put solutions on the table that says that fundamental decisions, medical decisions, that patients and their families and caring and compassionate physicians ought to be making those decisions, not folks in the buildings around here. and we have addressed the incredible issue, the challenge of lawsuit abuse that is driving up the cost of health care in this nation to the tune of hundreds of billions of dollars. and we put all of those solutions on the table without raising your tax dollars one penny. that's what we ought to be doing. positive solutions, i thank you for coming out today, i thank dr. goodman and governor du pont and all of the individuals involved in the free our health care now effort. this issue will be decided this fall with your help. we'll move in the right direction, which is the patient's direction. thank you so much, god bless you. >> i'm john goodman, i'm

president of the national center for policy analysis. at the ncpa, we're interested in opposing bad ideas, but also interested in working with scholars around the nation to find solutions to these very difficult problems. because of our concept of how savings accounts, there are now 12 million families across the families who are managing some of their own health care dollars. we need to do more of that. we need to liberate employers and employees. we need to allow employers to do what is now illegal in almost every state, and that is help their employees obtain insurance which is personal and portable. that they can take with them from job to job and go in and out of the labor market. we need to allow individuals and small businesses the opportunity to do what large companies can already do, and that is buy insurance in a national market. and we need to have tax fairness so that people who have to buy their own insurance get the same tax breaks as people who get insurance through an employer. now, over the last three months, we've been working with radio

talk show hosts across the country, there are four of them that want to talk to you this afternoon. they are dennis praguer, hugh hewitt, they have all played a very important role in making possible this 1.3 million signatures. they talked to these people every day on the radio. dennis, where are you? >> we've been given two minutes and we're used to it on talk radio. here it goes a couple of points. number one, we're told the moral issue is the one owned by those that think that increased government taking care of americans is -- that's the moral way to go. the moral issue is not owned by the left. increasing government is not a moral idea. i have a motto and i believe it. and the history of the world of since the early 20th century proves it. the bigger the government, the smaller the citizen.

people get worse as government gets better. that is why we have such passion on this issue. we want americans taken care of. republicans don't want health. they don't want their children to be doctored properly. are people nuts? we care less about the health of our families than democrats do? is that insane? this moral issue does not belong to the left. it belongs to the right on this issue. because when government gets bigger, people get smaller because they learn the government and the state will take care of my neighbor, not me. that's the biggest lesson of all of this. you raise an american generation to believe they don't have to do anything for their neighbor because the government will do it. that's why americans give far more charity per capita than western europeans because western european knows the government will take care of my neighbor, i don't have to. we have the moral idea.

we who want smaller government and bigger people. that's why 1.3 million people signed an arcane petition. whoever thought people would get so passionate about a health care bill? it's because our listeners and we who broadcast know how much is riding on this. and let me tell you one other thing, these are not insurance executives in here. these are not rich people in here. this is your neighbor in here, even your unemployed neighbor whose name is on this bill. and i'll tell you one other person whose name is on this bill, my own cardio doctor. a cardio thoracic surgeon in santa monica, california, who voted for barack obama. yes, i attend, i am taken care of by a liberal doctor. i have no problem with that. he's a very good doctor. and he is now both written and gone on my show to say he regrets that vote because of the utter damage that will be done to american medicine.

that's why we're here today and i thank you. and now, it is a pleasure to introduce. i wish i could introduce all my colleagues, but we're going to do one by one. michael medvedev, who is our living encyclopedia. the onl >> on the surface of that, doesn't it seem like a little bit of an uneven debated? tonight behind is the president, the leader of the free world, with his magnificent eloquence and flourishes and pomp and circumstance is going to be speaking to the entire world about his vision for bigger government involvement in health care. here we are with 1.3 million individual americans, ordinary people, the same kind of people

who came out at tea parties, who came out at town meetings, who made themselves known and express themselves. it seemed uneven. it is an important demonstration of important additions of health care. one vision is top down and the rest of the country has to follow the. the other vision is from the bottom of. why not do it the american way? president reagan said every important change in america begins with a discussion at the dining room table.

let us put forward the division and fight for that division and despite the imbalance, we can win on this because of america has always been a country that brought about change and fought for freedom. always been a country that brought about change and fought for freedom from the bottom up. somebody else who understands that extraordinarily well, my colleague and the best lawyer by far on talk radio, hugh hewitt. >> thank you, michael. in this 1.3 million signatures, there are hundreds of thousands of signatures of seniors. i just want to pause on that for a moment. they're very worried you cannot take hundreds of millions of dollars out of medicare and not diminish the quality and standard of care for senior citizens of america. the president has deserted these seniors, the democrats have

deserted the seniors, aarp has deserted the seniors, but the national policy for analysis has not, and the 1.3 million signatures underscores if this goes forward, the only bipartisan thing going on on the hill is bipartisan opposition to this health care program being put forward by the president tonight. there is bipartisan opposition to it, senior opposition to it, middle class opposition to it. across every demographic in the united states as represented by these petitions. i hope the congressmen are correct when they say they have been heard and i thank you for coming out to watch this today. to conclude this talk show round table, janet's been doing it longer than any of us. >> let me say a word if i can about talk radio for a minute. you put all these hosts together and you can say whoa, what a lot of hot air. even though the first descriptive word of who we are is talk, we listen. we've been listening to our audience who is not somebody who

is a fringe member of the right being moved by some maniac in some room in washington, d.c. these are normal people who have said enough is enough. in fact, i would venture to say that for all of us collective in our concentric circles of the world do go all over the united states from one end to the other. the vast majority of people listening to our radio didn't want to get involved in politics or government. mike pence says 20 or 30 people at a town hall is a good day. people are showing up because something has changed. this debate has gone beyond the pale of health care reform. who we are, and how we will govern ourselves. this is a much bigger disease. and speaking of diseases, there's a rampant disease in washington. it is called tone deafness.

and let's hope that based on all of these petitions, these public servants who work for us will stop talking at us, will start listening to us, and will help us look well to the ways of our own household. thank you. >> that's a pretty good group. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> live coverage from the governmental affairs committee. later, chris hill testified on capitol hill but the situation in iraq. that is live from the senate foreign relations committee at 2:30 p.m. eastern on c-span3. >>

good morning. afghanistan and pakistan and accountability for oversight of an interagency strategy will come to order. before we begin, i live like to address one piece of business. it was left over from the june 2009 hearing. after that hearing, i received a request from the agency for international development to

submit a statement for the record they received an invitation to submit a statement the . they declined to do so. without objection, i ask consent that all of the chairman and ranking member of the about to make opening statements. without objection, so ordered. i ask that it be open for five days so there could be written statements. without objection, so ordered. the morning. i have already explained that i'm sure there is no sign of disrespect for members -- from members that come to testify and that those do not get here will read the testimony and record afterward. on the democratic side, there is a cop is going on -- caucus

going on. the hearing today probably cannot be more timely. in the coming days, the commanding general is expected to request the president obama provided significant number of troops for our efforts. congress will consider final passage of a bill to triple u.s. aid to pakistan at will provide billion dollars a year. the night states is on the verge of doubling down on the commitment. [unintelligible] last year, the subcommittee conducted major investigations of the coalition's support fund program by which the united

states reimburses pakistan for expenses it incurs an assertion counter-terrorism operations. this has rescinded a bulk of aid. the investigation has found there were no receipt for significant portion of the reimbursements to pakistan and that the program lacked basic accountability provisions. it is not designed to improve the capabilities for counter- terrorism and insurgency. in afghanistan, the government accountability office report brought attention the lack of accountability for to wonder 42,000 small arms provided to the afghan national security forces. they cannot provide record, did not track serial numbers, or could not locate a significant portion of weapons provided.

it drew attention to the inability for forces to safeguard the weapons. while we are at a crossroad in washington, d.c., it appears we are at a crossroads on the road in afghanistan and pakistan. friends and afghanistan have not been good. three weeks ago, they held presidential elections. the result of that election are not final, but there are credible reports of widespread fraud. in pakistan, and the story is more mixed. after years of a consistent attention to militants, the civilian leadership seems to of gathered the result necessary to confront the tonnages they face. they harnessed the political will to take over several

reasons. it paid the ultimate sacrifice during this campaign. it stopped at the border of as tristan. the killing last month was is now begin development. it must be followed by concerted efforts by pakistanis themselves to bring security in this troubled regions. in afghanistan, the united states reconstruction aid efforts in face a daunting challenge, trying to rebuild a war-torn country. security challenges currently restrict inspector general from the mobility, access and presence necessary to do that. the principal question is whether the accountability committee is prepared to ramp up its own efforts. i have serious concerns about

the collective ability to provide comprehensive oversight coverage that keeps pace with the rapid bloom in activities in the region, especially given the board and already borne by those. the challenge they face is security. after numerous trips to a canister and, i am aware of the strict limits imposed on the center. sustained physical presence is crucial to establishing relationships necessary to receive tips of fraud and abuse. another concern i have is the coverage of the night the state's aid to pakistan. security challenges make u.s. aid efforts more vulnerable to waste fraud and abuse. i questions concerning overside coverage. -- i have questions concerning oversight coverage. i would like but on the call to

agonize more of our aid efforts. how will the united states community navigate its role as overseeing such programs? we count on the inspector general against waste, fraud, and abuse. we must demand transparency and accountability for every last taxpayer dollar. >> i want to mention the republicans are caucusing as well. i apologize the we had to slip away. i have the same concerns as the chairman with regard to the oversight committee ability to police and to make sure that there is not significant waste, fraud, and abuse. with the backdrop here of a commitment to step up our troop levels there with what michael

and others have described as a deteriorating situation, it makes this kind of hearing very important. if you have the resources and tools to insure that our money is being well spent. with that, i look forward to hearing the witnesses. >> thank you. the subcommittee will receive testimony. i will give a brief introduction. thankfully, it is free. we read all of your credentials. we have a distinguished panel that has been doing great service. we appreciate that. winners and the difficulties of what you are asked to do to my far left is a major general who serves as a special inspector general. he served as a deputy director and the department of defence. he retired from the marine corps in 2004. he previously served as a deputy

commander of forces in europe. he holds a b.s. from south carolina state university and an m.a. from pepperdine. from 2001-2009 he served as the inspector general of the department of labour. prior, he served in the civil service for 29 years where he led the inspection in internal affairs program worldwide. he holds a b.a. from the university of missouri and in may from the university of illinois. mr. batista sirs at the agency for international development and holds this position at the millennium challenge corporation. prior to this, he served as the fet director of the night states service. he spent 24 years of this

special agent in the secret service. he holds a b.a.. he serves as an inspector general for the department of state. he served as he headed the delegation for negotiations for the people's republic of china. prior to assuming this post, he served more than 25 years in the foreign service. he holds a b.a. from john hopkins university and m.s. from university in general. mrs. jacqueline was director of trade. she lived issued planning liaison units. prior to this position, she served as the inspector general for the night the state's department of state. -- for the united states department of state career a lot to thank you for being here today. it is the policy to swear in

witnesses in before they testify. i asked you to stand and raise your right hand. but anybody -- anybody -- you swear to tell the truth, the whole truth, and nothing but the truth? thank you. the record will indicate all the witnesses entered in the affirmative all of your written statements will be put on the record. i know some of you were kind enough to prepare a written statement. he should not feel compelled to lend just to that. we will go to questions and answers. thank you for being here. >> good morning. thank you for inviting me to participate in this hearing. in keeping with our mandate, which focuses on afghanistan, my remarks this morning will be provided accordingly.

i have provided a written statement. i wish to highlight a few of the element of that statement. as the newest organization at this table, it was less than a year ago that we obtained funding. we continue to aggressively build our organization to conduct reviews of eire construction projects and to provide findings and recommendations that will serve the congress and the administration appropriately. congress has appropriated about $30 billion since 2002 to rebuild afghanistan. the president's fiscal year 2010 budget request includes additional funding for afghanistan which would bring funding for afghanistan to about $50 billion through 2010. together with my colleagues at this table, they are able to prevent waste, fraud, and abuse

and for the implementation of the program in afghanistan. we are members of the southwest asia joint planning group at its pakistan/afghanistan subcommittee. that serves four forums on coordinating our work. it is said to suggest we court in a. -- coordinate. segar has grown from an office of 2 to an office of 46. there are 17 additional employees. we have offices in arlington, va. and in afghanistan where we have offices in kabul, 12 located at the innocent -- embassy in kabul. we are leading toward 20 which we have negotiated with the

ambassador and department of state. we have personnel and office space in several other locations in afghanistan including the airfield as well as kandahar airfield. while growing, we have watched closely as the government has developed and expanded policy in afghanistan and wish toassure the work of ambassador holbrooke who testified before this committee. he has highlighted oversight in this strategy. sigar has met with senior government officials in both washington and afghanistan. in kabul, we have attended meetings at the embassy. we have built a strong network among the agencies. these meetings, together with

our ongoing work, help us much heard the development of a new approach in afghanistan. we are using this information as a basis to adapt and expand our oversight plans. we work with members of the oversight community to make sure that over said work is coordinated and not duplicative, and aims to produce positive change, and does not overburden the u.s. civilian and military personnel who are implementing the reconstruction programs. we are keenly aware that is our job to find a document waste, fraud, and abuse. we have the purpose of improving the program and edifying wrongdoers. we are poised to [unintelligible] our mission is difficult. it has taken time to hire staff capable and willing to do this work in a dangerous environment. we have made considerable progress.

lastly, we have issued for mandated quarterly reports to this congress and five audit reports, each with recommendations for improved processes and corrective action. another three draft report clerk at the agencies for comment. we had 21 ongoing audits and inspections. we expect to issue five for more reports before the end of this month. sigar's work has led to $4 million in war. work. our investigators are working 25 other active cases as we speak. our work has identified problems with contract oversight and concerned with the passage. the impact of oversight cannot be measured solely by statistics. we believe that being on the scene is a real deterrent to

waste, fraud, and abuse. we also operates a hot line giving its coalition partners and the afghan citizens various methods by which to report allegations of waste, fraud, and use. the hotline has produced a number of credible leads that we of course are pursuing. we are working hard to produce and provided the robust oversight essential for the successful implementation of reconstruction programs in afghanistan. i welcome your questions. thank you. >> thank you for the opportunity to appear before you this morning. oversight in southwest asia with the emphasis on afghanistan and pakistan is one of my top priorities. it is my goal to insure the health, safety, and welfare of our troops to ensure that

taxpayer dollars are being spent wisely. our current efforts include increased oversight by enhancing our presence and by ensuring comprehensive and effective interagency coordination and oversight would provide through audits, investigations and assessments truly makes the difference, especially in such an unstable and dangerous region or the department of defense operations and troop levels are increasing. earlier, president obama announced a comprehensive new strategy to disrupt, dismantle, and defeat al qaeda in pakistan and afghanistan and to prevent their return to either country in the future. this strategy will involve several departments and agencies in our government. we have conducted oversight on pakistan in 2003 and again in 2009 and started oversight

efforts in afghanistan in 2004. we are increasing our resources in the region to ensure proper oversight and stepping in regard to the new strategy. -- in starting in regard to the new strategy. we have established offices in strategic offenses -- areas in southwest asia. we have utilized a model to support our efforts. this helps facilitate timely reduce and reporting of results while minimizing disruption to the fight here. our field office in the region is located at the blogger and air fields. -- at bagram airfield. we have stepped new offices in canada car and kabul -- in kandahar and kabul. in addition, our staff troubles as needed to fieldwork in

afghanistan. there currently five auditors into engineers on temporary trouble in afghanistan. i will be traveling there myself in the near future to meet with general make crystal and other commanders. i have created a new key position with in the d.o.t. office of inspector general to ensure that there is effective coordination and communication within the oversight committee with in southwest asia. this position will report directly to me and act on my behalf to coordinate and the conflict oversight efforts. the dodig is the lead agency for accountability in the department. for southwest asia, including afghanistan and pakistan, there are three critical coordination and planning mechanisms. the southwest asia joint

planning group, the comprehensive oversight plan for southwest asia, and our many investigative task forces. in addition, in may 2009, the planning group established a new subcommittee to coordinate audits and inspection work solely in afghanistan and pakistan. this subcommittee issued in august 2009 the afghanistan/pakistan comprehensive oversight plan. thank the committee for the average 90 to discuss our efforts. i look forward to continuing our strong working relationship with congress and all over such organizations engaged in afghanistan and pakistan. >> good morning.

thank you for inviting me here to testify today on behalf of the office. i am pleased to be here along with my colleagues from over -- other oversight organizations for whom we work closely as we continue our responsibilities. mr. merkley, my office has overseen programs from our regional office, increasing our staffing levels has increased. we have recently established a full-time presence of officers in this country, placing an auditor and investigator in kabul and two auditors in is lamas dog. this is inefficient oversight of our office in the philippines. -- this is in addition to our oversight of the office in the philippines. we a conducted 27 program performance audits in

afghanistan in which we have made 84 recommendations for operational improvements. we have issued nearly 30 financial audits and have identified nearly $8 million in costs, at which 1.3 million was sustained. we investigate fraud and waste in this country. in afghanistan, we have opened 44 investigations that have resulted in eight indictments, nine arrests, and three convictions. i want to mention just two of our recent investigations involving security contracts. in one, a defendant pled guilty to conspiracy this past week for his role to solicit kickbacks. in another investigation, four individuals were indicted after they obtained reimbursement for fraudulent expenses. the company and individuals

charge have been suspended indefinitely from doing business with the government. one employee is serving a two- year sentence and more than $24 million have been staved -- save a connection. in pakistan, we have conducted by audits and made 12 recommendations for program improvements. 23 financial audits conducted in pakistan and a 5 $6 million in questionable cost, of which $3.5 million was obtained -- sustained. we have been working diligently for several years to coordinate our oversight activities are investigators work closely with the task force which is established by the department of justice to a defy fraud associated with government contracts. we are also members of the international contracts task force who coordinates and procures fraud investigations.

a new coordination group, which we chair, was formed in june of 2009 in response to a focus on afghanistan and pakistan this subgroup consist of purposes is from the organizations you see with me here today. the afghan/pakistan subgroup issued an oversight plan in 2009. i submitted a copy with my written testimony. this plan corresponds to a strategy developed by the u.s. government for assisting afghanistan and pakistan in addressing high priority issues. the five areas addressed our security, governance, rule of law, economic and social development, confecting oversight and performance, and cost-cutting programs. the cell group will monitor this plan and make adjustments as necessary.

the members of the subgroup have been working together to address oversight in this region for several years. i am confident we are effectively for an inning with one another to provide the best oversight fossil. i want to emphasize that oversight is a shared responsibility. we must all be vigilant to ensure tax dollars are not wasted. thank you for inviting me here to testify. i look forward to your questions. >> thank you for inviting me to discuss the department of state oversight plan. i also led this office from 1994-1995 and i am pleased with the increase in oversight that oig is conducting around the

world. they are a member of the southwest asia joint planning group responsible for coordinating the results of the geographic reasons. the sub group was formed to better focus on oversight related to afghanistan and pakistan. the subgroup is working quite well. in addition to formal monthly meetings, members take part in weekly and daily discussions. we are acutely aware of the difficulties in working in pakistan and afghanistan and the burdens that our staff can place on u.s. personnel working in those countries. we are committed to avoiding redundancy. let me begin with pakistan. our middle east regional office will conduct a review this fall of the current management control environment in anticipation of a significant increase in funding i

implementation. they will assess risk associated with achieving new program objectives. our plan is to use this risk and vulnerability assessment to drill down and conduct more 40 -- more thorough investigations. as we learn from iraq programs in 2004 effective management controls are needed at the initial stages of assistance implementation. additionally, in 2008, merrill completed a review of the fulbright program. our office of inspections will conduct a full post-inspection of islamabad calendar year 2010. in august, oig and islamabad agreed to have them open a five person office to monitor

progress. our auditors and analysts will be stationed in pakistan, supplemented as needed. they have used the staffing model and plans to open a similar size of this -- similar emphasis in in this the kabul. -- in an embassy kabul. inspections will be in kabul this october and should issue a report later. about 12 inspectors, including a highly experienced leader, will conduct a post-inspection of all mission aspects including contracting, mission programs, and security protection. the office of inspections will issue a report later this month on the department mining program. in all this, we released a report covering the performance

of a u.s. training center under the terms of its contract. they are also participating in joint audit of the afghan police training and mentoring program. they were reported at the end of this year. they plan to work on the number of funded programs, including the following -- refugees, public diplomacy, and the guard forces. regarding investigations come in 2009, we created the investigative branch to conduct investigations in support of the department's expanding middle east and south asia missions. the primary mission is to respond to criminal allegations and support investigative activities concerning department programs from pakistan to morocco with a concentration on high risk areas of iraq, pakistan, and afghanistan.

investigators are assigned to meet with five posted overseas and one in arlington, virginia . we can remove personnel from these regions as needed. we plan to increase staff at current post, adding one in baghdad as funding permits. in 2010, we plan to add to step to be based in dc. [unintelligible] that includes six open investigations and for preliminary enquiries. the committee asked how we will plan our oversight should the bills provide an additional billion. there is clear it stood for an

income to presence in pakistan. we have been stepping kabul with temporary deployment. we will increase death there is necessary. successful wanting either way will improve our financial position for our office in islamabad which opens in 2010. the priorities could touch on a number of state programs that we oversee in some the we share with zero ig oig -- oig. thank you for the operation to present this information. >> thank you. >> thank you very much for inviting me -- testify.

since 2003, we have issued more than 30 reports and testimonies on u.s. efforts to disrupt and did the terrorism in afghanistan and pakistan. our work has as a by the need for greater attention on issues such as the development of a comprehensive interagency plan for pakistan, building the afghan national security forces, accountability over billions of u.s. assistance, contract management and oversight of contractors, and u.s. counterpart with counter narcotics efforts. it should be considered in the future planning and implementation. we found several existing conditions such as worsening security and the limited institutional capacity of the acting government continue to create challenges for the u.s. efforts to assist with securing,

stabilizing, and rebuilding afghanistan and combating terrorism. to address these challenges, we are recommending that states and u.s. a.i.d. improve their planning, enhance interagency coordination, increased police mentors for training the amt. as you noted in your opening statement, we have recommended increased oversight of weapons provided to the ansf and the coalition's support fund. we reported on the need for improvement contract management and numbers of oversight personal with experience. we understand that the plan for pakistan is being completed. the state has coordinated their plans for afghan national

security. in addition, it dod has taken steps to provide accountability for weapons. there are several ongoing reviews, addressing a wide range of issues such as fish trading conditions in afghanistan, building the afghan army, u.s. confecting, and creating sustainable development programs. like our colleagues in the accountability committee, we were to improve the performance of government. the authority extends beyond a single department agencies in order to provide assistance and support to the congress to make informed policy and funding decisions across the government. the policy. call require us to coordinate our oversight with other members of the accountability. we enjoyed a very good working relationship with them.

as a member of the subgroup of self was asia, we need quarterly -- meet quarterly. in addition to these formal consultations, we regularly communicate with colleagues in various offices to ensure our work is courted in an overlap is minimalist. inevitably, in developing our plans, we often find that are planned work is quite similar in scope. given the statutory mandate of our respective organizations, to conduct audits that involved multiple agencies, the overlap and are planning it is not surprising. we find that through the coordination groups that we have enjoyed that occurs across our office, we are able to avoid potential overlap.

we have enjoyed a very strong working relationship with sigar as it has set up its organization. that is not surprising since many of the employees ofsigar are former employees of gao. the u.s. faces enormous challenges working in afghanistan and pakistan. the security situation limit their movements and their ability to monitor projects. the search of civilian personnel has strained other supports. it is in that environment that gao enter our military bases and a we worked to minimize the burden our oversight places on stuff. with additional resources and attention focused by this congress and is ministration on afghanistan, there should be

additional oversight to ensure accountability of u.s. efforts. they rely on testimonial evidence as well as on-site verification to conduct our work. gao has visited afghanistan and pakistan over 10 times in the past two years to ensure the integrity of our work. we have faced some challenges. kwe take steps to mitigate these limitations by taking advantage of opportunities to meet with key officials. we also take advantage of sinology such as video conferencing. to enhance our ability to conduct our work, we have established a presence in iraq. we have been there since january 2008. we have a three staff that is stationed there on six months

rotational basis this has been invaluable to our ability to keep up oversight. with the challenges, and the increase into presence, we have recently initiated an assessment to determine our requirements in the region as a whole. the plan to explore several options including alternative locations. in closing, we recognize that carrying out oversight responsibilities will never be easy or without risk. as importantly, we recognize that the men and women serving our country their indoor hardships and risk to perform the work critical to our national security and policy goals. my colleagues at this table and i know we must be judicious in

our present and mindful of any additional burden on our diplomats and service personnel. we stand ready to assist the congress in its oversight effort and will continue to closely coordinate with our colleagues. i'm ready to answer any questions.

hearing before the supreme court here on c-span 3. >> the argument this morning in case 08205, citizens united versus the federal election commission. mr. olson. >> mr. chief justice, and may it please the court. robust debate about candidates for elective office is the most fundamental value protected by the first amendment's guarantee

of free speech. yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations, any union or any corporation. the government claims it may do so based upon the austin decision that corporate speech is by its nature corrosive and distorting because it might not reflect actual public support for the views expressed by the corporation. the government admits that that radical concept of requiring public support for the speech before you can speak would even authorize it to criminalize books and signs. this court needs no reminding that the government, when it is acting to prohibit particularly when it is acting to criminalize speech that is at the very core of the first amendment has a heavy burden to prove that there is a compelling governmental

interest that justifies that prohibition and that the regulation adopted in this case a criminal statute is the most narrowly tailored necessary to accomplish that compelling governmental interest. >> mr. olson, are you taking the position that there is no difference in the first amendment rights of an individual, a corporation after law is not endowed by its creator with inalienable rights. so is there any distinction that congress could draw between corporations and natural human beings for purposes of campaign finance? >> what the court has said in the first amendment context, "new york times" versus sullivan, grosjean versus associated press and over and over again is that corporations

or persons entitled to protection under the first amendment. >> would that include today's megacorporations where many of the investors may be foreign individuals or entities? >> the court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation. >> own any shares? >> pardon? >> nowadays, there are foreign interests, even foreign governments, that own not one share but a goodly number of shares. >> i submit that the court's decisions in connection with the first amendment and corporations have in the past made no such distinction. >> could they, in your view, in the view that you're putting forth, that there is no distinction between an individual and corporation for first amendment purposes in any megacorporation, even if most of the investors are from abroad,

congress could not limit their spending? >> i'm not saying that, justice ginsburg. i'm saying that the first amendment applies. then the next step is to determine whether congress and the government has established a compelling governmental interest and a narrowly tailored remedy to that interest. if the congress -- and there's no record of that in this case of which i'm aware -- certainly the government has not advanced it in its brief that is some compelling government interest because of foreign investment in corporations. if there was, then the court would look at, determine how serious is that interest, how destructive has it been to the process, and whether the -- maybe the limitation would have something to do with the ownership of shares of a corporation? >> do you think congress could prevent foreign individuals from funding speech in the united states elections? >> the -- >> private individuals,

foreigners who want to -- >> that's, of course, a different question. i haven't studied it, justice scalia. >> well, i asked it because i thought it was related. >> the fundamental point here is -- and let me start with this. and i think we should start with this. and the government hardly mentions this. the language -- >> mr. olson, would you answer justice ginsburg's question, yes or no? legally foreign investors, does the first amendment permit any distinction between corporate speakers and individual speakers? >> i have not -- i'm not aware of a case that justice -- >> i'm not asking you that. in your view, does it permit that distinction? >> my view is based upon the decisions of this court, and my view would be that unless there's a compelling governmental interest and a narrowly -- >> if there is a compelling -- can there be any case in which there's a different treatment of corporations and individuals in your judgment? >> i would not rule that out, justice stevens. i mean, i can't imagine all of

the infinite varieties of potential problems that might exist. but we would eventually come back to the narrow tailoring p)/aa7@ @ @ @ @ @ @ @ @ @ @ @ @d there's a compelling governmental interest and a narrowly tailored remedy. but there is no justification for this. i was going to say that 97% of

the 6 million corporations that filed tax returns in 2006 had assets less than $5 million, assets, not net worth. so we're talking about a prohibition that covers every corporation in the united states including nonprofit corporations, limited liability corporations, subchapter s corporations and every union in the united states. >> you used the word "prohibition," mr. olson. one answer to that is that no entity is being prohibited, that it's a question of not whether corporations can contribute but how. they can use pacs, and that way we issue that the people who contribute really supportive of the issue of the candidate, but so the corporation can give, but it has to use a pac.

>> i respectfully disagree. the corporation may not expend money. it might find people. stockholders or officers who wanted to contribute to a separate fund who could then speak that. to use the words of one justice, that's ventriloquist speak. i would say that it's more like surrogate speak. if you can find some other people that will say what you want to say and get them to contribute money through a process that this justices -- >> who is the "you"? those are the directors? the ceo? not the shareholders. we don't know what they think. >> well, this statute is not limited to cases where the shareholders agree or don't agree with what the corporation says. as the court said in the belotti case, the prohibition would exist whether or not the shareholders agreed. but let me go back to your question. >> it covers totally -- totally owned corporations, too, doesn't it? >> yes. >> all the stock in the

corporation still can't -- >> yes, and it includes membership corporations such as citizens united. >> the individual contribution also covers people who would like to give $2,500 instead of $2,400, which is the limit. and maybe there are 100 million or 200 million people in the united states who if they gave $2500 rather than $2400, nobody could say that that was really an effort to buy the senator or the congressman. so is that unconstitutional, too? >> no -- well, what this court has said is that in connection with contribution limitations, there is a potential compelling governmental interest. this is what buckley says. >> yeah. >> but expenditures, which is what we're talking about today, do not concern the question -- the actual threat of quid pro quo corruption or the appearance of quid pro quo corruption, and you know justice breyer what the court said in that case is because it's not inhibiting someone from actually speaking, it's -- >> so here the obvious argument

is look, they said the compelling interest is that people think that representatives are being bought. okay? that's to put it in a caricature, but you understand what i'm driving at, okay? that's what they say in buckley. so congress now says precisely that interest leads us to want to limit the expenditures that corporations can make on electionary communication in the last 30 days of a primary over the air, television, but not on radio, not on books, not on pamphlets, not on anything else. all right? so in what respect is there not conceptual, at least, a compelling interest and narrow tailoring? >> well, in the first place, i accept what the court said in buckley that expenditures do not raise that concern at all. congress has not made that finding. you're talking -- and you mentioned just a matter of radio and television, but in buckley versus vallejo, the court

specifically said that that is the most important means of communicating. in an election. and the court used the words "indispensable." and what the court said in buckley versus vallejo is it compared a limitation on expenditures independent uncoordinated expenditures with the prohibition that the court addressed when it had a statute before it that said newspapers couldn't endorse candidates on the day of election, and the torneo case which required a reply to be given. and the court said those restrictions which were unconstitutional were considerably less and that the restriction in buckley versus vallejo on expenditures -- >> i agree that buckley made the distinction between contributions and expenditures. and it seems to me that the government's argument necessarily wants to water down that distinction. but in sponsor just in furtherance of justice breyer's point, you have two cases. one in which officeholder goes to a corporation, says, will you

please give me money? they said we can't do that. the other is in which a corporation takes out an ad for the -- for the candidate which relieves that candidatecorporatu please give me money? they said we can't do that. the other is in which a corporation takes out an if there's any -- >> and i think buckley says no. >> buckley -- >> but as a practical matter, is that always true? >> well, it may not always be true. in the infinite potential applications of something like that, justice kennedy, anything might possibly be true. and justice breyer said, well, what if congress thought or what if congress thought the people might think that that was kind of somehow suspect? that is not a basis for prohibiting speech by a whole class of -- >> well, of course, it did, was a basis for prohibiting speech

by in the sense of giving contributions above $2,400, by 300 million people in the united states. but the point, which i think is the one justice kennedy was picking up, is are we arguing here between you and my questions? is the argument in this case about the existence of a compelling interest? because congress seemed to think that there was certainly that. it's this concern about the perception that people are, say, buying candidates. are we arguing about narrow tailoring? congress thought it was narrow tailoring. or are we arguing about whether we should second-guess congress on whether there is enough of a compelling interest and the tailoring is narrow enough? >> you must always second-guess congress when the first amendment is in play. and we're arguing -- we are discussing -- >> yes. >> both the compelling -- both a compelling governmental interest and the narrow tailoring. and there is not a sufficient record. the reason the government has

shifted position here, they were first of all talking about the so-called distortion rationale in austin. the distortion rationale which they seem to have abandoned in the supplemental briefs filed in connection with this argument, and they resorted to the corruption appearance of corruption. there isn't a sufficient record of this. >> what about the district court's finding? wasn't there a finding before the three-judge court that federal officials know of and feel indebted to corporations or unions who finance ads urging their election or the defeat of their opponent? there was a finding of fact to that effect, was there not? >> the -- yes. there is something to that effect in the district court opinion. but it doesn't cover all corporations. it didn't focus in specifically

on expenditures. >> so if they just covered large corporations, so you take out the mom and pop single shareholder -- >> well, that's 97% of the corporation. >> not 97% of the contributions. i mean, the contributions that count are the ones from the corporations that can amass these huge sums in their treasuries. >> i think that goes back to justice kennedy's question, and my response which distinguishes between contributions and expenditures, the point that justice kennedy was making in his question is that under some circumstances an expenditure might coincide or resonate with what the candidate wishes to do, but the court looked at that very carefully in buckley versus vallejo and said that might not be the case. it might, in fact, be these expenditures might be counterproductive when they're independent, they're not coordinated with the candidate, they are more directly expressioned by the party spending the money. they're not like a contribution,

so they're more of an infringement on the right to speak and they're less of a threat of corruption because there is less -- there's no quid pro quo there. and if there is, it would be punish building as a crime. >> counsel, in your discussion of austin, you rely on its inconsistency with belotti. that, of course, involve aid referendum. austin, expenditures in an individual election. why isn't that a significant distinction? >> well, it is what the bellotti court said is that we're not deciding that question. and austin did address -- you're correct -- expenditures. but it based it on a rationale. >> more than said we're not deciding, it said they're entirely different situations. you read that in one footnote which has been cited six or eight times by our later cases. >> yes. and i also read the footnote 14 in the bellotti case that cited case after case after case that said corporations had rights or protected rights under the first

amendment. i'm not disagreeing with what you said, justice stevens. the court said it was dicta because the court did not deal with it. >> it's been repeated. that footnote has been repeatedly cited in subsequent cases, most of which were unanimous. >> well, because -- and i agree, the bellotti court was not discussing that. >> it did discuss it precisely in that footnote, it said it's a different case. >> i understand and i don't disagree with what you've just said, justice stevens. >> it said we're not deciding. >> that's the point i'm trying to make. >> i don't mind citing that. bellotti didn't decide that. >> what bellotti also said, and i think this is also in many decisions of this court, the inherent worth of speech in terms of its capacity for informing the public does not depend upon the identity of the source whether corporation, association, union or individual. >> now that we've cleared up that bellotti didn't decide the

question, what is the distinction that -- why don't you think that distinction makes sense? in other words, you don't have the potential for corruption if a corporation is simply speaking on a referendum. it may directly affect its interest. if you're dealing with a candidate, what the court has said in the past is that you do have that problem of corruption. in other words, why isn't that distinction a way to reconcile bellotti and austin? >> there is a distinction, but i think the distinction goes back to "a," expenditures versus contributions. number one. and then secondly, it goes back to what this court said in conjunction with the impossibility of finding a distinction between issue ads and candidate ads. the line dissolves on practical application. the interest -- >> where did we say that? >> you said that repeatedly including most recently in the wisconsin right-to-life case. and it first appeared in buckley itself. the distinction is very hard to draw between the interest that

the speaker is addressing and whether it's a candidate or an issue because issues are wrapped up in candidates. the corporation interest and the interest that its fiduciary officers are presenting had it speaks to behalf of the corporation. >> i don't think you're correct to say that the court made there was no distinction. it said the distinction requires the use of magic words, and that's what they said in wisconsin right-to-life. both of them said there is a distinction. >> well, but the words of -- >> difficult to draw on in some cases, but nobody said there's no distinction that i'm aware of. >> well, to use the words of the court which occurred repeatedly is that the distinction dissolves impractical application. that, justice stevens, i think, addresses the very common-sense point that when you're addressing an issue, whether you're addressing a referendum matter, whether it's a proposed legislation or a candidate that is going to raise taxes on the corporation, those distinctions

dissolve. it's all first amendment freedom. >> i thought that buckley had narrowed the statute precisely two magic words and still found it unconstitutional as applied to corporations that made independent expenditures. >> yes. >> isn't that what happened in buckley? >> the $1,000 limit in buckley was first of all limited to the magic words "candidacy expression." then secondly the court and the words of the statute were @@@@@

precisely. but suppose you're right. suppose we overrule these two cases. would that leave the country in a situation where corporations and trade unions can spend as much as they want in the last 30 days on television ads, et cetera, of this kind, but

political parties couldn't because political parties can only spend hard money on this kind of expenditure. and therefore the group that is charged with the responsibility of building a platform that will appeal to a majority of americans is limited, but the groups that have particular interests like corporations or trade unions can spend as much as they want. am i right about the consequence? if i'm right, what do we do about it? >> i think you're wrong about the consequence. there are 27 states that have no limitations on either contributions or expenditures, and that -- the earth has not -- >> no, i'm not -- i'm saying, am i right in thinking that if you win, the political party can't spend this money. it's limited to hard-money contributions. but corporations and trade unions can spend unlimited funds. >> well, if the court decides in

favor of the arguments that we are making here, i think what you're suggesting is that because there are other limitations that someone has not challenged in this case, that that would be somehow unfair and unbalanced. >> no, i'm not suggesting that. i am suggesting we'll make a hash of the statute. and if we're going to make a hash of the statute, what do we do about it? and that's why i want you to take a position on another important part of that statute. and that is the part that says political parties themselves can not make these expenditures that we're talking about except out of hard money. >> i want to address that in this way. and i said when we were here before that most fundamental right that we can exercise in a democracy under the first amendment is dialogue and communication about political candidates. we have wrapped up that freedom, smothered that freedom with the most complicated set of regulations and bureaucratic controls. last year the federal election commission that was supposed to

be able to give advisory opinions didn't even have a quorum for six months of the year 2008 when people would have needed some help from a federal elections commission. what i'm saying in answer to your question, justice breyer, there are, i suspect, all kinds of problems with federal election laws where they apply to parties and where they apply to what candidates might do and so forth, but that has never been a justification. we will uphold a prohibition on all kinds of people speaking because if we allowed them to speak, someone else might complain that they don't get to speak as much as they would like. >> well, with reference to any inkong ruities that might flow from our adopting your position, are you aware of any case in this court which says that we must refrain from addressing an unconstitutional aspect of the statute because the statute is flawed in some other respects as well? >> no, i'm not, and i think that was what i was attempting to say in response to what justice breyer was asking me. >> mr. olson, are you giving up

on your earlier arguments that there are ways to avoid the constitutional question to resolve this case? i know that we asked for further briefing on this particular issue of overturning two of our court's precedents, but are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question? >> no, justice sotomayor. there are all kinds of lines that the court could draw which would provide a victory to my client. there are so many reasons why the federal government did not have the right to criminalize this 90-minute documentary that had to do with elections. but what the court addressed specifically in the washington right-to-life case is that the lines, if they are to be drawn, must not be lines that are ambiguous, that invite litigation, that hold the threat of prosecution over an individual and in practical application, that is what -- >> mr. olson, my difficulty is

that you make very impassioned arguments about why this is a bad system the courts have developed in its jurisprudence. but we don't have any record developed below. you make a lot of arguments about how far and the nature of corporations, single corporations, single stockholder corporations, et cetera. but there's no record that i'm reviewing that actually goes into the very question that you're arguing exists, which is a patchwork of regulatory and jurisprudencial guidelines that are so unclear. >> i would like to answer that. there are several answers to it, and i'd like to reserve the balance of my time for rebuttal. it is the government that has the burden to prove the record that justifies telling someone that wants to make a 90-minute documentary about a candidate for president that they will go to jail if they broadcast it. the government has the

obligation, and the government had a long legislative record and plenty of opportunity to produce that record. and it's their obligation to do so. >> but the challenge -- >> may i ask one question and you can answer on rebuttal. no one has commented on the national rifle association's amicus brief. none of the litigants have. that's in response to justice sotomayor's thought that there are narrow ways of resolving the problem before us. on rebuttal, will you tell us what your view of their solution to this problem is? >> i will, justice. thank you. >> why don't you tell us now, we'll give you time for we'll give you time for rebuttal. >> don't keep us in suspense. >> every line including the lines that would be drawn in several of the amicus briefs -- and they're not the same -- put the entity who wishes to speak before you again a year from now because the movie might be shorter. it might be video on demand. it might be a broadcast. it might have a different tone with respect to a candidate.

every one of those lines puts the speaker at peril that he will go to jail or be prosecuted, or there will be litigation, all of which inhibits -- >> but the answer to my question, the line suggested by the nra is the line identified by congress in the snow jeffords amendment which would separate all of these problems. what is your comment on that possible solution? >> i would like to take advantage of justice stevens' offer and respond to that during the rebuttal, mr. chief justice. >> thank you, mr. olson. >> mr. abrams? >> mr. chief justice, and may it please the court.

the first case cited to you by mr. olson happened in "the new york times" against sullivan, and i'd like to begin by urging two propositions on you from that case. in that case the court was confronted with a situation where "the times" made three arguments to the court. they said for us to win, they said, you either have to revise basically federalize libel law to a considerable degree of which they did, or, they said, we only sold 390 copies in alabama. so you could rule in our favor by saying there was no jurisdiction. or they said we didn't even mention sheriff sullivan's name. so you could rule in our favor on the ground that they haven't proved a libel case. the court did the first. it did the first which is the broader rather than the narrowest way to address the question. and i suspect they did it --

don't know -- but i suspect they did it because they had come to the conclusion that the degree of first amendment danger by the sort of lawsuits which were occurring in alabama and elsewhere was something that had to be faced up to by the court now or -- >> mr. abrams, "times" against sullivan was not -- did not involve overruling precedents of this court that have been followed by this court and others. so i think the situation -- >> that's true, your honor. it did involve overruling 150 years of american jurisprudence. i mean, there was no law at that point that said -- >> there was no ruling of this court. >> that's true, your honor. >> to adhere to our precedents, especially a case like austin which was repeating the business

about amassing large funds in corporate treasuries. it was not a new idea in austin. and it was repeated after austin. but there was -- "times" against sullivan, i think, is quite distinct. the question that was posed here is, is it a proper way to resolve this case to overrule one precedent in full and another in part? >> and what i'm urging on you, your honor, is that by a parity of reasoning, although not precisely the same situation, that there are cases in which there is an ongoing threat to freedom of expression which may lead -- if you were to agree to that which may lead the court to say rather than taking a narrower route to the same result, it is worth our moving

away in this case from looking for the narrowest way out and determining it now rather than the next as applied challenge -- >> there are two separate questions that have been raised in opposition to your position. one is -- one is that we should not resolve a broad constitutional issue where there are narrower grounds. and that's the question responding to an entirely separate question is the issue of stare decisis, and you acknowledge that wasn't involved, but the first question obviously was. >> right. >> and stare decisis, of course, is a question much briefed by the parties, and it is one which involves, of course, a consideration not only of the merits of the decision but certain other factors, the length of time the decision has been in effect and the like.

the time in this case for the mcconnell case, of course, is only six years. the time for the austin case is 19 years, which is less than one ruling of this court's just last term. >> what the court said in austin, it also said in the nrwc case, which was, i think, eight years before austin. so austin was not a new invention. >> well, austin was the first time that corporate speech was corporate independent expenditures were barred by a ruling of this court. that had not happened prior to austin. and the solicitor general's brief acknowledges that. now -- >> but there have been limits on corporate spending in aid of political campaign since the turn of the 20th century. >> there had been limits on

corporate contributions since the turn of the century. corporate independent expenditures came much later. and that's something that i think is worth -- >> much later in 1947, right? >> yes, your honor. 1947. president truman vetoed that bill saying that it was a dangerous intrusion into free speech. that has always been an area of enormous controversy, not just in the public sphere but in the judicial sphere. the early cases in which once what the court did was to basically say in one case after another that the statute did not govern the particular facts of the case so as to avoid -- >> those were reunion cases, weren't they? >> yes, they were three union cases. and the case after that essentially was buckley. and buckley held unconstitutional the limits posed there to independent

expenditures. so all i'm saying that this is not a situation as if we have an unbroken amount of years throughout american history in which it has been accepted that independent expenditures could this has been a high-level with the courts, understandably, shying away from the issues, directly, and the same issue on the. . >> have you read the dissent on this? >> i have read this. this was somewhat inconsistent with what you said. >> and also inconsistent with the later view. >> yes. >> going back to the question -- the one thing that is very interesting about this, is the active involvement of the state and the federal legislation, in

trying to find the balance, between the interests of protecting how they should proceed, and the interests of the first amendment. my question to you is, once we say that they cannot accept this on the basis of a compelling government interest, that is narrowly tailored, are we cutting off or would we be cutting off that future democratic process, because what you are suggesting is, that the courts to created corporations gave birth to corporations and there could be an argument made that that was their error to start with. the fact is that they reviewed a creature of state law, with

human characteristics. we can go back to the very basics in this way. but what we not be doing more harm than good with a broad ruling, in a case that does not involve this for business corporations. that doesn't involve for business corporations and actually doesn't even involve the traditional nonprofit corporation? it involves an advocacy corporation that has a very particular interest. >> your honor, i don't think you'd be doing more harm than good in vindicating the first amendment rights here which transcend that of citizens united. i mean, i think reading my friend's brief on the right, they come -- some at least -- come pretty close to saying there must be a way for citizens united to win this case other

than a broadway. in my view, the principles at stake here are the same. citizens united happens to be sort of a example of this sort of group speaking no less about who to vote for or not who to vote for or what to think about a potential ongoing candidate for president of the united states. but in lots of other situations day by day, there is a block to public discourse caused as a result of this congressional legislation. and so we think it is not a matter of cutting off what legislatures can do. they can still pass legislation doing all sorts of things. they could do public funding. they could do many other things that don't violate the first amendment. if we're right in saying that

independent expenditures, that category of money leading to speech that we're talking about today, if we're right that that is the sort of speech which is at the core of the first amendment, then you would be doing only good, only good by ruling that way today across board. thank you, your honor. >> thank you, mr. abrams. >> mr. chief justice and may it please the court. i have three quick points to make about the government's possession. the first is that issue has a the corporations must be subject to special rules. when they participate in elections. and this court has never questioned that judgment. number two -- >> wait, wait, wait, wait. we never questioned it, but we never approved it either. and we gave some really weird

interpretations to the taft-hartley act in order to avoid confronting the question. >> i'll repeat what i said, justice scalia. for 100 years this court, faced with many opportunities to do so, left standing the legislation that is at issue in this case. first the contribution limits, then the expenditure limits that came in by way of taft-hartley. and then, of course, in austin, specifically approved those limits. >> i don't understand what you're saying. i mean, we're not a self-starting institution here. we only disapprove of something when somebody asks us to. and if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn't disapprove it. >> well, you're not a self-starting institution, but many litigants brought many cases to you from 1907 onwards. and in each case this court turns down, declined the opportunity, to invalidate or

otherwise interfere with this legislation. >> but that judgment was validated by buckley's contribution expenditure line. and you're correct if you look at contributions. but this is an expenditure case. and i think that it doesn't clarify the situation to say that for 100 years to suggest that for 100 years we've alouded expenditure limitations which, in order to work at all, have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction, we've never allowed that. >> well, i think justice stevens was right in saying that the expenditure limits that are in play in this case came into effect in 1947. so it's been 60 years rather than 100 years. but, in fact, even before that, the contribution limits were thought to include independent expenditures. and as soon as congress saw independent expenditures going on, congress closed what it perceives to be a loophole.

so, in fact, for 100 years, corporations have made neither contributions nor expenditures save for a brief period of time in the middle of the 1940s which congress very swiftly reacted to by passing the taft-hartley act. now, the reason the congress has enacted these special rules -- and this is the second point i wanted to make -- >> before that, may i ask you to clarify one part of the first, namely your answer to the question i posed to mr. olson, namely, why isn't the snow-jeffords amendment which was picked on by congress itself which is argued by the nra an appropriate answer to this case? >> that was my third point, justice stevens. >> oh, i'm sorry. >> so we'll just skip over the second. my third point is that this is an anomalous case in part because this is an atypical plaintiff. and the reason this is an atypical plaintiff is because this plaintiff is an

ideological, nonprofit -- >> so you're giving up the distinction from mcfl that you defended in your opening brief? there you said this doesn't qualify as a different kind of corporation. because it takes corporate funds. and now you're changing that position? >> no, i don't think we're changing it. mcfl is the law, and the fec has always tried to implement mcfl faithfully. and that's what the fec has tried to do. >> so i guess do you think mcfl applies in this case even though the corporation takes corporate funds from for-profit corporations? >> i don't think mcfl, as written, applies in this case. but i think that the court could, as lower courts have done, adjust mcfl, potentially to make it apply in this case, although i think that that would require a remanned. what lower courts have done -- mcfl was written in a very strict kind of way so that the organization had to have a policy of accepting no corporate funds whatsoever.

some of the lower courts including the d.c. circuit which, of course, sees a lot of these cases have suggested that mcfl is too strict, that it doesn't -- >> do you think it's too strict? >> the fec has no objection to mcfl being adjusted in order to give it some flexibility. what the -- >> so you want to give up this case, change your position and basically say you lose solely because the questioning that we've directed on reargument? >> solely because, i'm sorry? >> because of the question we've posed on reargument? >> no, i don't think that that's fair. we think -- we continue to think that the judgment below should be affirmed. if you're asking me, mr. chief justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes. >> what case of ours -- what case of ours suggests that there's a hierarchy of basis on which we should rule against a party when both of them involve constitutional questions?

extending, modifying mcfl would be, i assume, by virtue of the first amendment overruling austin would be by virtue of the first amendment. so what case says we should prefer one as opposed to the other? >> i think the question really is the court's standard practice of deciding as applied challenges before facial challenges. and this case certainly raises a number of tricky as-applied questions. one is the question of how the statute applies to nonprofit organizations such as this one. another is the question of how it applies to v.o.d. transmissions. yet another is the question of how it applies to a 90-minute infomercial as opposed to smaller advertisements. >> but if you insist on the as-applied challenge, isn't that inconsistent with the whole line of cases which began in thornhill, alabama, in coates versus cincinnati? what about the thornhill doctrine? it's not cited in the brief. that doctrine is that even a litigant with outstanding to

object to a particular form of conduct can raise that if the statute covers it in order that the statute does not have an ongoing chill against speech? and there's no place where an ongoing chill is more dangerous than in the elections context. so you're asking as to have an ongoing chill where we have as-applied challenges which are based on, as i indicated before, speaker, content, time. and this is the kind of chilling effect that the thornhill doctrine stands directly against. >> you know, i think even in the first amendment context, justice kennedy, the court will not strike down a statute on its face unless it finds very substantial overbreadth. many applications of the statute that are unconstitutional. as opposed to just a few or just some. what i'm suggesting here is that the court was right in mcconnell and then confirmed in wrtl to find that pickra which is the

only statute directly involved in this case, did not have that substantial overbreadth. >> let me ask you this. suppose that we were to rule that nonprofit corporations could not be covered by the statute. would the statute, then, have substantial overbreadth? >> well, i would urge you not to do that in that kind of sweeping way because the reason for the nonprofit corporations being covered is to make sure that the nonprofit corporations don't function as conduits for the for-profit corporations. >> suppose we were to say that. would the statute then not be substantially overbroad? >> well, i don't think that the statute is substantially overbroad right now. so if you took out certain applications, i can't -- >> i'm asking you to assume that we drove a nonprofit profit distinction. then the statute, it seems to me, clearly has to follow. because number one, we couldn't sever it based on the language. >> i see what you're saying. well, you could do a couple things. you could do what justice stevens suggested. so justice stevens suggested --

i suggested to chief justice roberts -- >> i don't think you really caught what i suggested because you treated it as an enlargement of the mcfl. >> i was going to go back. >> that is not what the national rifle association argues or what's in jeffords. it cores ads that are financed exclusively by individuals even though they are sponsored by a corporation. >> yes, that's exactly right. what you're suggesting, justice stevens, is essentially stripping the willstone amendment from bikra. >> treating the snow-jeffords amendment as being the correct test, and nobody's explained why that wouldn't be a proper solution not nearly as drastic as being argued here. >> yes, and there are some -- you know, there are some reasons that that might be appropriate. the wellstone amendment was a funny kind of thing that was passed very narrowly. but beyond that, it was passed with a pretty substantial support of many people who voted against the legislation in the end presumably as a poison pill.

>> if we go that route, what we're doing is creating an accounting industry, aren't we? corporations give huge amounts of money to the c-4 organization. and then somebody, perhaps the f.e.c., has to decide whether that's, in fact, a way of subverting against a direct payment for the communication, right? okay. so congress said, we don't want that. congress said that's going to be a nightmare. and we decide wellstone. for whatever reasons. now, don't we have to focus on whether congress can say that or whether it can't? i don't know why it can't not say it. >> congress also said if you strike down the wellstone amendment, we want this in the jef jefrdords amendment. >> if you strike it down, what's left is the snowe-jeffords

amendment, not pacs, just separate bank accounts which include only separate expenditures. >> why is that not the wisest, narrowest solution put before us? >> it is certainly a narrower and i think better solution than a facial invalidation of the whole statute. >> what do you understand to be the compelling interest that the court ar dig late eticulated in? >> i think what the court articulated in austin and in the government briefs, we've suggested that austin did not articulate what we believed to be the strongest compelling interest which is the anticorruption interest. but what the court articulated in austin was essentially a concern about corporations using the corporate forum to appropriate other people's money for express purposes. >> right. but you've more or less abandoned is too strong a word, but as you say, you've relied on a different interest, the@@@@@@u

you say that the court has not accepted this as a compelling interest. you say that this is up for play because you would ground this on the interest that the court has never recognized? >> we have not abandoned austin, we have simply said that in addition to the other money interest -- >> where in the briefing the you see that this allegation of wealth interest supports austin? >> i would say that this is a concern about the corporate usage of other people's money. >> putting the interest aside, where in the briefing to support the interest articulated in austin? quid pro interest aside, where do you support what you articulate in austin? >> well, we talk about shareholder protection and where we talk about the distortion of the electoral process that

occurs when corporations use their shareholders' money who may or may not -- >> i understand that to be a different interest. that's the shareholder protection interest as opposed to the fact that corporations have such wealth. >> i think that they're connected because both come -- >> so am i right and in saying in the supplemental briefing you do not rely at all on the market distortion rationale on which austin relied. not the shareholder rationale, not the quid pro quo rationale, the market distortion that these corporations have a lot of money. >> we did not rely at all on austin to the extent that anybody takes austin to be suggesting anything about the equalization of a speech market. so i know that that's the way many people understand the distortion rationale of austin. and if that's the way the court understands it, we do not rely at all on that. >> so if we are going to preserve austin, we have to accept your invitation that the quid pro quo interest supports the holding there or the

shareholder protection interest. >> i would say either the quid pro quo interest, the corruption interest, or the shareholder interest or what i would say is something related to the shareholder interest that is, in truth, my view of austin which is a view that when corporations use other people's money to election year. that is a harm not just to the shareholders themselves but a sort of broader harm to the public that comes from distortion of the election hearing by corporations -- >> let's talk about overbreadth. let's assume that that is a valid interest. what percentage of the total number of corporations in the country are not single shareholder corporations, the local hairdresser, the local auto repair shop, the local new car dealer? i don't know any small business in this country that isn't

incorporated. and the vast majority of themho. now, this statute makes it unlawful for all of them to do the things that you're worried about, you know, distorting the interests of other shareholders. that is vast overbreadth. >> you know, i think that the single shareholders can present these corruption problems. many closed corporations, single shareholder corporations -- >> i'm not talking about the corruption interest. you have your quid pro quo argument. that's another one. we'll get to that when we get there. but as far as the interests you're now addressing which is those shareholders who don't agree with this political position are being somehow cheated. it doesn't apply probably to the vast majority of corporations in this country. >> you're quite right, justice scalia. when it comes to single shareholders, the kind of other

people's money interests, the shareholder protection interests do not apply. >> that can't be the justification. because if it were, the statute would be vastly overburdened. >> there the strongest justification is the anticorruption interest. >> with respect to that, what is your answer to the argument that more than half the states including california and oregon, virginia, washington state, delaware, maryland, a great many others permit independent corporate expenditures for just these purposes? now, have they all been overwhelmed by corruption? a lot of money is spent on elections in california. is there a record that the corporations have corrupted the political process there? >> i think the experience of some half the states cannot be more important than the 100-year-old judgment of congress that these expenditures would corrupt the federal system. >> congress has a self-interest. i mean, we are suspicious of

congressional action in the first amendment area precisely because -- at least i am -- i doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. now, is that excessively cynical of me? i don't think so. >> i think, justice scalia, it's wrong. in fact, corporate and union money go overwhelmingly to incumbents. this may be the single most self-denying thing that congress has ever done. if you look -- if you look at the last election cycle and look at corporate pac money and ask where it goes, it goes ten times more to incumbents than to challengers. and in the prior election cycle, even more than that. and for an obvious reason. because when corporations play in the political process, they want winners. they want people who will produce outcomes for them. and they know that the way to get those outcomes, the way to get those winners is to invest in incumbents.

and so that's what they do. as i said, in double digits times more than they invest in challengers. so i think that that rationale, which is undoubtedly true in many contexts, simply is not the case with respect to -- >> but, your honor, your position, if a corporation's "a," "b" and "c" are called to washington every monday morning by a high-ranking administrative official or a high of ranking member of the congress corporations have a lot of information and you are silencing them during the election. the others, they have already been used and are being used, by

the government. they are used to express the views of the government. and you say another corporation cannot object to this? >> what is going on in a halls of congress, corporations can lobby the members of congress, the same way that they did before this legislation. this is to make certain that lobbying is just a persuasion. of course the corporations have many opportunities, to look for council. >> one of the responses to the kennedy problem is that we have to contribute to both parties and a lot of them do. >> this is the suggestion about how they engage the political process, and how they are different from the individuals. the individual can be the most wealthy person in the world. a few of us are only the economic interests. we have convictions and

dislikes and corporations in case the political process in a different way, and that is what makes them so much more damaging. different way, and this is what makes them so much more damaging. >> well, that's not -- i'm sorry, but that seems rather odd. a large corporation just like an individual has many diverse interests. a corporation may want to support a particular candidate, but they may be concerned, just as you say, about what shareholders are going to think about that. they may be concerned that their shareholders would rather they spend their money doing something else. the idea that corporations are different than individuals in that respect, i just don't think holds up. >> well, all i was suggesting, mr. chief justice, is that corporations have actually a fiduciary obligation to their shareholders to increase value. that's their single purpose, their goal. >> so if a candidate -- let's take a tobacco company -- and a candidate running on the platform that they ought to make tobacco illegal, presumably that company would maximize its

shareholders' interest by opposing the election of that individual. >> but everything is geared through the corporation's self-interest in order to maximize profits, in order to maximize revenue, in order to maximize value. individuals are more complicated than that. so when corporations engage the political process, they do it with that set of, you know, blinders. i don't mean to be pejorative because that's what we want corporations to do. >> well, i suppose some do, but let's say if you have ten individualskorpgs want us to do >> if you have ten individuals and they each contribute $1,000 to the corporation and say, we want this corporation to convey a particular message, why can't they do that? if they did that as a partnership it would be all right? >> well, it's sound to me like the corporation you're describing is the corporation of the kind we have in this case, where one can assume the members all sign on to the corporation's ideological mission. where the corporation, in fact, has an ideological mission.

>> general keegan, most corporations are indistinguishable from the individual who owns them. the local hairdresser. the new auto dealership -- dealer who has just lost his dealership and who wants to oppose whatever congress, maybe, he thinks was responsible for this happening or whatever congressman won't try to patch it up by getting the auto company to undo it. there's no distinction between the individual interest and corporate interest and that's true for the vast majority of corporations. yet, this law freezes all of them out. >> you know, to the extent we're only talking about single shareholder corporations i would ask why it's any burden on the single shareholder to make the expenditures to participate in the political process in the way that person wants to outside the corporate form. so single shareholders aren't

suffering any burden here. they can do everything they could within the corporate form out side the corporate form. they probably don't get the tax break they would get inside the corporation form but i'm not sure anything else is very different. >> well, smaller corporations, as justice scalia is talking about. they can't even give money to charities sometimes because of ultra -- giving political contributions is not typical corporate activity. >> i remember spending quite a few days one summer reading through a thousand pages of opinion in the d.c. circuit. and i came away pt distinct impression that congress has built an enormous record of support for this bill in the evidence. and my recollection is that it's now a couple of years old. there was a lot of information in that which suggested that many millions of voters think at

the least, that large corporate and union expenditures or contributions in favor of a candidate, lead the benefitted political figure to decide why, specifically, in favor of the contributing or expending organization. the corporation or union. >> yes. >> it was on the basis of that, i think, that this court upheld the law in bikra that we heard from the other side there isn't much of a record on the. so if you can save me some time here, perhaps you can point me we, if i'm right, toes the thousand pages of opinion and tens of thousands of underlying bits of evidence where there might be support for that proposition? >> that's right, justice. in addition to the 100-year-old judgment, that recently, members of congress and others created a gigantic record showing there

was corruption and the appearance of corruption. and in that record, many times senators, former senators, they talk about the way in which fundraising is in the front of their mind in everything they do. the way they grant access and influence and the way in which outcomes likely change as a result of that. >> can i ask, it seems -- to your shareholder protection rationale, isn't it extraordinarily patternalistic for the government to take the position is shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it? >> i don't think so, mr. chief justice. i, for one, can't keep track of what my -- where i hold -- >> well you have a busy job. you can't expect -- >> it's not have a have a busy job it's -- >> but it is extraordinary. the idea as i understand the rationale, is that we, the

government, big brother, has to protect shareholders from themselves. they might give money or buy shares in a corporation and they don't know that the corporation is taking out radio ads. the government has to keep an eye on their interest. >> i appreciate that. it's not that i have a busy you do not know where they are investing, so you do not know. >> this is the interest that we have to protect the shareholders. >> in the world where most people on things through mutual funds or retirement plans, and they have to because they have no choice, is very difficult for the individual shareholders to be monitoring what every company is doing or know the extent of this. >> this is unlike the unions, because the worker who does not want to affiliate with the union cannot have funding from his own pocket.

this is political poison. but there is no comparable tax for the corporations. >> in the union context this is a constitutional right. they give back the finding that any union member or employee in the workplace does not want to have used for these purposes. >> so you need to be taken out because there is not the shareholder protection interest, there is no parallel for the union? >> you are right about this. with respect to union, the anti- corruption interest is strong and they should be kept in. what you suggest is that the union members that unions should be kept in. i think what your point suggests, the union member point suggests why congress thought there was a compelling interest to protect corporate

shareholders in the same way that, let's say, dissenting union members are protected by the constitution. there's no state action, of course, so there's no constitutional right in the corporate context. but congress made a judgment that it was an important value that shareholders have this choice, have the ability, both to invest in our country's assets and, also, to be able to choose our country's leaders. >> it's not investing in our country's -- >> the argument -- >> in the course of this argument have you covered point two? >> i very much appreciate that. >> i'd like to know what it is so my notes are complete. >> i appreciate that, justice kennedy. that was an explanation of some of the questions the chief justice asked me about what interest the government was suggesting motivated these laws and are compelling enough such that this court certainly should not invalidate these laws. >> i take the we have never accepted your shareholder protection interest? this is a new argument? >> you know, i think that that's

fair. certainly, bilotti does not accept it. national right to work is an interesting opinion because national right to work accepts for unanimous court both the shareholder protection argument and the anti-corruption argument with respect to section 441.b in particular. in later cases the court suggested that national right to work was only focused on contributions. if you read national right to work, that distinction really does not -- it's not evident on the face of the opinion and i think chief justice rehnquist in a later dissent suggested he never understood it that way so national right to work is a confusion on this point. it might have been that -- >> other than that -- and i think there may be some ambiguity there, but i wouldn't say in our is a holding on shareholder protection. so to the extent you abandoned

the original rationale in austin and articulated different rash as. you have two, the did prokuo prodetection interest and the shareholder protection interest. >> which we think was in austin. >> austin, i thought, was based on the aggregation of immense wealth by corporations. >> you know, again, austin is not the most clear opinion but the way we understand austin, what austin was suggesting was that the corporate form gave corporations significant assets other people's money, that when the corporation spent those assets -- >> can you give me the citation of the page in austin where we accepted the shareholder protection rationale? >> i think it comes when the court is distinguishing mcfl and the message of that distinction of mcfl is the shareholder protection interest. but -- >> do the words "shareholder protection" appear in the austin opinion? >> i honestly don't know, mr.

chief justice and i don't want to push this too far. >> let's assume they don't, then i'll get back to my question which is, you're asking us to defend the austin or support or continue the austin opinion on the basis of two rationales that we have never accepted? shareholder protection and did p prooh quid pro quo corruption. >> the thing that's changed is the record that changed and it was very strong on the notion that there was no difference when it came to corporate contributions and expenditures that there actually was no difference between the two. >> is that a "yes?" in other words, you're asking us to uphold austin 1976, not a

2009, after the very extensive record that was created in bikra. i see my time is up -- >> may i ask one question that was highlighted in the prior argument. and that was -- if congress could say no tv and radio ads, could it also say no newspaper ads, no campaign biographies? the last time the answer was, yes, congress could but it didn't. is that still the government's answer? >> the government's answer has changed, justice ginsburg. it is still true that bikra 203 which is the only statute involved in this case does not

apply to this or anything other than broadcast. 441 b does on its face, apply to other media. and we took what the court's own reaction to some of those hypotheticals, very seriously. we went went back and considered the matter carefully. and the government's view is that although 441b does cover full-length books this would be quite good as applied challenge to any attempt to apply for 441 b in that context. they have never applied 441 b in that context. so for 60 years a book has never been at issue. >> what happened to the overbreadth doctrine? i thought our doctrine in the first amendment is if you write it too broadly we're not going to pair it back to the point where it's constitutional if it's overbroad it's invalid. what happened to that?

>> i don't think it would be substantially overbroad. if i tell you the fcc has never applied this statute to a book to say it doesn't apply to books is to take off, essentially, nothing from the -- >> we don't put our first amendment rights in the hand of ffc bureaucrats and if you say you're not going to apply it to a book, what about a pamphlet? >> i think a pamphlet would be different. a pamphlet is pretty classic election. this is no attempt to say the 441 b only applies to video and not to print. >> what is the particular -- what if the particular movie involved here had not been distributed by the video on demand? suppose that -- people could view it for free on netflix over the internet? so that free dvds were passed out. suppose people could attend the movie for free in a movie theater? expose the exact text of this was distributed in a printed

form. in height of your retraction, i have no idea where the government would draw the line with respect to the medium of that. it could be prohibited. >> well, none of those things, again, are covered. >> no, but could they? which of them could and which could not? i understand you to say books could not. >> yes. i think what we're saying is that there has never been an enforcement action for books. nobody has ever suggested, nobody in congress or nobody in the administrative apparatus has suggested that books pose this problem. >> so you're a lawyer advising somebody that's about to come up with a book and you say, don't worry. the fec has never tried to send somebody to prison for this? this statute covers it but don't worry. the fec has never done it. will that comfort your client?

i don't think so. >> but this statute don't cover books. >> that's exactly right. the only statute involved in this case does not cover books. so 441 b which -- >> does cover books. >> -- which does cover books except what i just said that they would be a good as applied challenge and there has been no minimum administrative practice of ever applying extra books. and also only applies to expressed advocacy. 203 has a broader category of the functional equivalent of expressed and one can't meet you have a history of union involvement in politics, and in the last sentence, it has this. of all this, vote for jones. >> i think that wouldn't be

covered, mr. chief justice. the fec is very careful and says this in all its regulations to view matters as a whole. and as a whole, that book would not count at express advocacy. >> thank you, general? >> mr. waxman? >> mr. chief justice and may it please the court, the requirement that corporations fund electoral add okay si, the same way individuals do, that is with money voluntarily committed by people associated with the corporation is grounded in interests that are so compelling that 52 years ago, before buckley was decided. before feca was enacted.

before buckley-style quid pro quo corruption was ever addressed this court explained that, quote, what is involved here is the integrity of our electoral process and not less, the responsibility of the individual citizen for the successful functioning of that process. if the court now wishes to reconsider the existence and extent of the interests that underlie that sentiment, expressed for the court by justice frank forter, supporting political candidates, it should do so in a case in which those interests are forthrightly challenged with a proper and full record below. . >> one of the amicus briefs, maybe professor hayward, suggested that the history of

this 1947 provision was such that it really wasn't enforced because people were concerned about the first amendment interests. and that the courts, to the extent cases were brought, did everything they could to avoid enforcing the limitations. >> well, i don't recall who the professor was either, mr. chief justice but i recall pretty well the history that was recounted -- i would say the history recounted by this court in the autoworkers' case, in cio, in the pipe fitter's case, which is quite inconsistent with that. we've never had a case until this court supplemental order. we've never had a case that challenged directly, quote, austin and austin-style corruption, which is a term i think that is quite misleading. when the sober-minded root was moved to stand up in 1894, and

urged the people of the united states and urged the congress of the united states tone act legislation that would address, quote, a constantly-growing evil which has done more to shake the confidence of plain people of small means of the country in our political institutions, than any practice which has ever obtained since the founding of our government, he was not engaging in a high-level discussion about political philosophy. >> but he was talking about contributions in that context? is that clear? >> with all due respect, justice kennedy, i don't think there was any distinction whatsoever in that time, between the distinction that this court came to understand as a result of feca and its adjudication of it and the prehistory of taft-hartley, between contribution expenditures. what it said, and i'm quoting

from the speech which is partly reprinted in this court's opinion in mcconnell, the idea is to prevent the great companies, the great aggregations of wealth from using corporate funds directly or indirectly to send members of the legislature to these halls in order to vote for their protection in the advancement of their interests as against those of the public. >> great aggregations of wealth? the brief think chamber of commerce, the amicus brief by the chamber of commerce points out that 96% of its members employ less than 100 people. these are not aggregations of great wealth. you're not talking about the rail road barons and the trusts of the root era. you're talking mainly about small business corporations. >> justice scalia, i take your

point and i think you've made this point forcefully many times before. a unanimous force if na,,@r@ @ j this goes to the very foundation of the democratic and republican exercise, with the representative government. this case is not a case -- >> i understand this answer. if this is what you are concerned about, you could have said that the corporations have to have a net worth -- >> if a small corporation or any corporation of any sort is wanting to bring the challenge to this, or a state law and say, i am not the problem that theodore roosevelt was address that, i only have three

employees and $8,000 in my bank account. compel compelling interest because i only have three employees and $8 in a bank account. that's fine. buts what truly extraordinary, given the sentiments that underlay the tillman act and the taft hartley act is that we're having a discussion today about the koconstitutionality of a la that's bon on the books that no corporation has ever raised the challenge. >> it's been on the books forever. number one, the phenomenon of television ads where we get information about scientific discovery and environment transportation issues from corporations who, after all, have patents because they know something, that is different. and the history you applied applied a contributions not to those kinds of expenditures.

>> justice kennedy, first of all, i think it is actually true that patents are owned by individuals and not corporations. but be that as it may, there's no doubt -- i'm not here saying that this court should reconsider bilotti on first principles any more than i'm saying it shouldn't consider austin on first principals. corporations can and do speak about a wide range of public policy issues and since the controlling opinion was issued in wisconsin right to life, the kind of campaign-related speech that corporations can't engage in the pre-election period is limited to the functional kwif lept of expre-- equivalency of advocate -- >> this is pe4rplexing. it sounds like the sound bytes you hear on tv. the fact of the matter is the only cases that are being re -- that may possibly be reconsidered or mcconnell and

austin and they don't go back 50 years or 100 years. >> my point here is, jaw city alito, and i don't mean to be demeaning this court with sound bytes, the point is that what austin was to be sure, the very first case in which this court had to decide actually had to decide whether or not the prohibition on corporate-funded campaign speech could be properly limited and supported by a compelling interest. all i'm suggesting and i hope if you take nothing else from this today is this -- we have here a case in which the court has asked a question that essentially goes to the bona fide -- factual predicates of the interests that have been viewed as compelling in austin and in mcfl and in mcconnell itself. whether you call it the

corrosive effect of corporate wealth. whether you call it, quote, shareholder protection -- >> and my point is that there's nothing unusual whatsoever about a case that the party says, my constitutional rights were violated and there's no prior decision of this court holding that what was done is constitutional. and in that situation, is it an answer to that argument that this has never been challenged before? the court has never held that it was unconstitutional? it's been accepted up until this point by the general public that this is constitutional? no. that's not regarded as an answer to that question. >> mr. olson was quite right, oort mr. olson or abrams, i find it so difficult to tell the two apart. one said, yes, i think in response to justice sotomayor's question about with, there's no factual record. there's absolutely nothing in

this case and the response was, well, it's the government's burden. the government has to prove that any restriction that it imposes passes strict scrutiny. fair enough. but the question has to be reads. the issue has to be raised. if austin, justice alito, or the compelling interest that austin and mcconnell relied on were forthrightly challenged in a case, the government would have the option to -- >> mr. waxman, the government did that have opportunity and the government compiled a record and when the citizens united, abandoned that position, you're quite right they changed their course -- the government and district court complained it went to all this work to develop this record and yet we hear nothing about what the record showed. >> that's because -- i assume i have your permission to answer? >> yes. >> the only challenges that were litigated in the district court -- and they were largely related to disclosure -- were

very direct as-applied challenges that did nothing whatsoever to implicate the foundation of mcconnell or austin. and all i'm saying is that if you want to re-examine the predicates, the interest that congress is going back a whether it's 60 years or 100 years and courts, whether it has been the actual rationale of the decision or a predicate of the rationale of the decision, you ought to do it in a case where the issue is squarely presented so that the government can do what it did in mcconnell and in another context, in michigan versus gruder when it was suggested that adiran undermined this court's controlling opinion. >> thank you, mr. waxman. mr. olson, five minutes. >> thank you, mr. chief justice. the words i would leave with this court are the solicitor

general's. the government's position has changed. the government's position has changed as to what media might be covered by congressional power to sensor and ban speech by corporations. now we learn contrary to what we heard in march, that books couldn't be prohibited but pamphlets could be prohibited. we also learned -- >> that's not the -- the statute we're involved in in this case does not cover those. >> unless they are engaged in, quote, expressed abvocacy. the government says now, that the fec is now willing to recede from its regulations whi explicitly covered this corporation and i don't know, as i stand here today, what kind of corporations the government would choose to prosecute. remember, the federal election

commission, which didn't even have a quorum and couldn't function at all for six months during the important election year of 2008 -- >> what you have to do is prosecute only those that do not -- who do not rely exclusively on individual contributions. >> well, that's your question from before, justice stephens, and, a, this corporation accepted a small amount, $2,000 out of the funding of this so that wouldn't solve the problem for my client's corporation. >> but it would solve it forefor the advertising. they are two different things. the hillary document and the advertisements. it would cover those. but they are the only ones that are clearly violatesing the statute. >> the overbreadth of this statute solves the probably saying corporations still can't speak and if you don't have anything to do with them they wear a scarlet letter that says, c, if you accept one dollar of funding and you better make darn sure when a check comes in for

$100 from the xyz hardware in the neighborhood it wasn't a corporation you used to make a documentary about a candidate. the other way in which the government's position has changed is we do not know as -- >> does this mean you disagree with the nra's submission? >> i submit it doesn't the problem. it leads exactly -- >> if it solved the problem as it did for advertising would by the an appropriate solution? >> i can't say it solved the problem because it doesn't solve the problem of prohibiting all corporate speech and i'm submitting, justice stephens that that's unconstitutional. i think what you're suggesting is that some lig limitation, what you're suggesting is not a whole lot different than pack. it would lead -- i think it was an accounting nightmare. it would be -- >> but it's a nightmare congress endorsed in the snow v jefferson -- >> but the wellstone amendment applied.

we unanimously held thatd that. >> i think what my response is that that does not solve the problem of inhibiting of one's -- >> you do not endorse the nra's position? >> we don't. and it wouldn't exempt my clients. the third way in which the government's changed its position is its rationale for 24 prohibition in the first place. is it corruption? is it equalization? with some dispute i heard the solicitor general sas the equalization rationale was something the government disavowed. it wasn't what austin said the government said. and -- >> justice marshall said he was not trying to equalize all voices in the political process. here's a sentence that says that's not what the rationale of this case is. >> with all due respect, justice ginsburg, the words that jump out at me are the words from page 665 that say the they sier to counterbalance those

advantages unique to the corporate form is the state's compelling interest in this case. that sounds to me like equalization. i don't know. i'm representing an individual who wants to speak about something that's most important thing that goes on in our democracy. i'm told it's a felony. i'm not -- and i don't know what the rational basis is. it's overbroad. now i hear about this protecting shareholders. there's not a word in the congressional record with respect to -- which was before the court in the mcconnell case -- about protecting shareholders. at the bilotti pointed out that would be overbroad anyway because this applies to -- >> i just read that sentence as meaning the corporation is an artificial person in respect to which the state creates many abilities and capacities and the free is free to create disabilities and capacities. it's not a statement about balancing rich and poor. >> it strikes me that it is. it follows the words that say,

corporations are given unique advantages to aggregate wealth and then we must take away the advantage by equalizing the process. i think that's plain meaning. but my point is, i guess, if i may finish this sentence. >> briefly. >> my point is that the government here has an overbroad statute that covers every corporation, irrespective of what the stock holders think. irrespective of whether it's big or general -- a big railroad or anything like that. and it doesn't know, as it stands here today, two years after this movie was offered for -- offered to the public for its view, what media might be covered. what type of corporation might be covered. and what compelling ju justification or narrow standard would be applied t [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> you are watching public affairs programming on c-span.

next, president obama has his health care address to congress last night. we will also hear the republican response to the president's remarks from rep. boustany. and the topics on "washington journal" include health care and the supreme court. >> on c-span3, a hearing on stimulus spending and fraud prevention. this is at 10:00 eastern. later on, chris hill testifies about the situation in iraq. this is from the foreign relations committee at 2:30 eastern on c-span3. now, president obama and his speech from last night laying out his health care priorities

to a joint session of congress. >> madame speaker, the president of the united states. [applause]