♪ [applause]

>> in his weekly online address, president obama talks about the risk of americans living -- losing their coverage if changes are not made. health care is also discussed a center john cornyn of texas. he talks about the need to build bipartisan support for a comprehensive plan. >> on wednesday, i addressed a joint session of congress and the american people about why we need health insurance reform and what it will take to do it. since then, i have continue to hear from many americans across the country about why this is so urgent and important. i have heard from americans who cannot get health coverage, men and women who worry that one accident or illness could drive them into bankruptcy. between skyrocketing cost in

insurance practices, they are beginning to worry that they could find themselves and ensure. it is an anxiety that is keeping more and more americans awake at night. over the last zero months. nearly six murray more americans lost their health coverage, 17,000 men and women every single day. we are not just talking about americans in poverty. we are talking about middle class americans. in other words, it could happen to anyone. based on a new report from the treasury department, we can expect that about half of all americans under 65 will lose their health coverage at some point over the next 10 years. if you are under the age of 21 today, chances are more than half that he will find yourself uninsured at some point in that time. more than one-third of americans will go without coverage for longer than one year. i refuse to allow that future to happen. in the united states america, no one should have to worry that they will go without health insurance, not for one year, not for one month, not for one day. once i signed my health reform

plan into law, they won't. my plan will provide more security and stability to those who have health insurance, offer quality affordable choices to those who currently do not, and bring health care costs for families, businesses, and government under control. first of all, if you are among the hundreds of millions of americans who already have insurance through your job or medicare or medicaid or the va, nothing in my plan will require you or your employer to change the coverage or the doctor you have. what my plan will do is make the insurance you have or better for you. we will make it illegal for insurance companies to deny it rejected denied coverage because of pre-existing condition or water down our coverage when needed most. that would no longer be able to place a cap on the map of coverage you can receive in a given year are over a lifetime. we will place a limit on how much you can be charged for out- of-pocket expenses, because no one should go grow just because

they get sick. second, if you or one of the more than 30 million americans who cannot get coverage, you will finally have quality of horrible choices. if you lose your job, change your job, or start your own business, you will be able to get coverage. as i have said over and over again, i will not sign a plan that adds one dime to our deficits. this plan will be paid for. the middle class will realize greater security, not higher taxes. if we can successfully slow the growth of health care costs by one-tenth of 1% each year, will actually reduce the deficit by four trillion dollars over the long term. affordable quality care within the reach of tens of millions of americans who do not have it today. stability and security for hundreds of millions to do. that is the reform we seek. we have had a long and important debate, but now is the time for action. every day we wait, more americans will lose their health

care, their businesses, and homes. also the dreams and have worked for and the peace of mind they deserve. they are why we have to succeed. if your willing to put country before party, in the interest of our children of water on, if you refuse to settle for politics where scoring points is more important than solving problems, and if you believe that america can still come together to do great things, then join us. give us your help, and we will finally get health insurance reform done this year. >> hi, i am center john cornyn of texas. eight years ago, the american people experience the worst terrorist attacks in our history. on september 11, 2001, thousands of innocent people lost their lives. this year and every year, we honor those we lost on 9/11. our hearts go out to all of those who remember that day as both a national tragedy and a

personal tragedy. the terrorists who attacked us on 911 enjoyed safe haven in afghanistan. that is why winning in afghanistan remains so important. . . >> on afghanistan, president

obama has shown the kind of leadership he promised during the campaign. he has build consensus and earned bipartisan support. yet come on health care reform he has taken a much different approach. he has paid lip service to bipartisanship while rejecting the ideas that were built bipartisan support. the -- bipartisan support. as a result, he has not only divided his own party, but republicans as well and has ignored the clear wishes of the american people. the president gave another big speech this week to try to turn his numbers around, but instead of talking, the president and congressional democrats should spend a little more time listening. at town hall and public event across the nation, the american people are asking the right questions about health care reform. they are asking, how can washington lord health care costs by spending trillions of dollars more -- lower health- care costs by spending trillions of dollars more over the next 10

years? how can we continue medicare without reducing but if it's for seniors? and how can we keep health insurers honest with our existing entitlement programs are riddled with waste, fraud and abuse? the president told us wednesday night that "there remain some significant details to be ironed out." he was not kidding. the most significant detail is the cost of this plan and its impact on our long-term budget deficit. when you start counting at 2013 the first full year implementation, the cost of the house bill comes to about $2.20 trillion according to a senate budget to committee. instead of a top down budget, president obama should work on the bottom of solution that the american people can support. the republicans want to save medicare and medicaid from bankruptcy by offering more choices to beneficiaries and making providers compete for their business.

republicans want to expand access and lower the cost of private insurance by expanding competition at the state level. republicans also want common sense medical liability reform that eliminates junk lawsuits against doctors and hospitals. we need to put an end to jackpot justice and frivolous lawsuits, as well as the practice of defensive medicine. by listening to the american people and working across the aisle president obama can deliver common-sense health care reforms, reforms that will lower costs and expand access to care. thank you very much for listening to make god bless you and your family and may god continue to bless the united states of america. >> thank -- thousands of people marched in the u.s. downtown capital today. freedom works foundation, a conservative organization led by former house majority leader dick armey organized several groups around the country for

what they're calling a taxpayers march on washington. your is a look at some of the activities of the west front of the capitol grounds.

>> you can see the entire rally here on c-span beginning at about 4:10 a.m. eastern here tomorrow, and again monday at 8:00 p.m. on c-span2. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> next, president obama at a health-care rally in minnesota. after that, the supreme court or argument in citizens united verses the fec oral argument.

and then a look at the wamp -- walter cronkite memorial. >> tomorrow on "washington journal" new york times white house correspondent peter baker discusses the news of the week, including the health debate and development in afghanistan and talks about a new republican -- a new quarterly. and mr. solomon talks about the war in afghanistan and his new book. and mr. berman from the american forum -- foreign policy council to examine how the obama administration can gain leverage over iran in nuclear negotiations. "washington journal" live at 7:00 a.m. eastern on c-span. president obama was on the road today to promote his health-care plan. he spoke at a rally at the

target center in minneapolis for about 45 minutes. [cheers] >> hello, minnesota. [cheers] hello, minneapolis. [cheers] thank you. thank you, everybody. are you fired up? [cheers] thank you, thank you. thank you, everybody. [cheers] [crowd chanting, "yes, we can!"]

>> thank you. thank you, thank you. thank you, everybody. everybody, take a seat. great to see you. çit is good to see you all. it is good to be back in minnesota. [cheers] before i do anything else, i want to get to some very important news. i hear the gophers have their home opener in their brand new stadium a little later today. [cheers]

i want to make sure you know -- i wish the gophers' luck, what they are playing the air force. and i have to fly back home on one of their planes in a few hours -- [laughter] so, i've got to be careful about what i say. we have got some wonderful people here today with me. i just want to make some special acknowledgments. first, your two outstanding centers, senators in the klobuchar and al franken are in the house. [cheers and applause] my great friend who was part of

the obama for president movement before i even started -- decided to run for president, r.t. rybak is in the house. [cheers and applause] the mayor of the great city of st. paul, chris kohlman, is in the house. [cheers and applause] your attorney general, lori swanson, is in the house. [cheers and applause] your state auditor, rebecca pottow is here. [cheers and applause] and one of the finest public servants in the country, my secretary of health and human services, kathleen sebelius, is here. [cheers and applause]

also, the biggest obama fan in the country is in the house. [cheers] that is it. i love this guy. michelle has a picture. she looks like sasha next to [laughter] the sky] he is a great supporter -- next to this guy. [laughter] he is a great supporter. i do not know if any of you caught it on television. you may have been watching "so you think you can dance?" but

michelle of the show, by the way. [laughter] but the other night i gave a speech about health care to the congress. [cheers and applause] and i can say that i can already see that this crowd is a lot more fun. [cheers] listen, i did not go to congress just to speak to senators or representatives. i went to speak on behalf of the american people -- [cheers] because you see, i ran for this

office because i believe it was time for a government that once again made possible the dreams of middle-class americans, that we are looking out for ordinary people. õça government that understands the quiet the struggles that you wrestle with at the kitchen table when you are going through all the bills, or when you are lying awake at the end of a long day and trying to figure out what you're going to do about health care for your children or what you are going to do about the situation with your mortgage, worrying about how stable your job is and what is happening with the economy, seniors who are worrying about their retirement security. you know and i know that health care is one of those fundamental

struggles because if you are one of the tens of millions of americans that have no health insurance, you live every day just one accident or illness away from bankruptcy. and contrary to some of the myths out there, these are primarily people who are deep in poverty. a lot of those folks are on medicaid. these are people working every day, these are middle-class americans. [cheers and applause] in your employer does not offer coverage. maybe you are self employed and you cannot afford it because it cost you three times in the marketplace than it does for big companies. [applause] maybe you are one of the millions of americans who are denied coverage because of a previous illness or condition no

fault of your own, but insurance companies decide it is too risky or too expensive for you to cover. today, we received a new report from the treasury department and found that nearly half of all americans under 65 will lose their health coverage at some point in the next 10 years. [boos] think about that. more than one-third will go without coverage for longer than one year. we've got to do something. [cheers] [cheers and applause]

we have got to do something because it could happen to anyone. there but for the grace of god go i.. but i do not need to tell you that health care problems do not stop with the uninsured. how many have ever worry about losing health insurance because you lost a job or changed jobs or had to move? [applause] how many stories about folks whose insurance companies decided to drop their coverage or water it down when they get sick and need it the most? [applause] how many of you know someone who paid their premiums every month only to find out that their insurance company would not cover the full cost of their care like they thought they would get? [cheers and applause] we have all heard these stories. there was a father i met in colorado whose child was

diagnosed with severe hemophilia the day after he was born. they have insurance, but there was a cap on their coverage. once the child's medical bills began to pile up, the father was left to search for options frantically. another woman in texas was about to get a double mastectomy when the insurance company canceled her policy because, they said, she brought to declare a case of acne -- true story. by the time she had the insurance reinstated come on her breast cancer had more than doubled in size. i got a letter from a spaull -- small business owner who said, i do not know what to do. i have always provided health insurance for my family's, but the premiums have gone up 48% in the last year. i think i am probably going to have to stop providing health insurance for my employees. i doç not want to, but i do not

have a choice. these stories are heartbreaking. nobody should be treated that way in the u.s. a. and that is why we are going to bring about change this year. [cheers and applause] it has now been nearly a century since teddy roosevelt first call for help reform. it has been attended by nearly every president in congress -- and congress cents. -- since. it has placed a burden on families and businesses and taxpayers and we cannot sustain it any longer. [cheers and applause]

if we do nothing your premiums will continue to rise faster than your wages. if we do nothing, more businesses will close down, few were will -- fewer will be able to open in the first place. if we do nothing, we will eventually spend more on medicare and medicaid than any other -- every other government program combined. that is not an option for the united states of america. minnesota, and of the the first president to take up the cause of health care reform, but i am determined to be the last. we're going to get this done this year. [cheers and applause] we are going to get it done this year.

here is the good news. we are closer now to reform than we ever have been. we have debated this issue for the better part of a year now. there is actually some solid agreement on about 80% of what needs to be done. that has never happened before. [cheers] our overall efforts have been supported by an unprecedented coalition of doctors and nurses and hospitals and seniors groups. even drug companies, many of whom were opposed to reform in the past, many have recognized that this is not going to be stopped. we have got to get on board. we have also seen in these last few months is the same partisan spectacle that has left so many of you disappointed in washington for so long. we have heard scare tactics instead of honest debate.

too many have used this opportunity to score short-term political points instead of working together to solve long- term challenges. [applause] i do not know if you agree with me, but i think the time for bickering is over. [cheers and applause] the time for games has passed. now is the time for action, now is the time to deliver on health care for every american. [cheers and applause] [crowd chanting, "yes, we can !"]

now, because even after the speech there has been a lot of misinformation out there i want you to know about this plan that i announced on wednesday so when you talk to your neighbors and friends and your at the water cooler or buying starbucks or whatever it is that you are doing, i want you to be able to say to people, here is what is going on. the plan announced wilson -- will provide more security and stability to those who have health insurance. [cheers] it will providezv insurance to those who do not. [cheers] and it will slow the growth of health care costs for families and businesses and our government. [cheers and applause]

let me give you some details. at first, if your money -- first, if you are among the millions of americans that already have insurance through your job or medicare or medicaid or the v.a., nothing in this plan will require you or your employer to change your coverage or your doctor. i want to be clear about that. let me repeat, nothing in this plan requires you to change what you have if you are happy with it. it's what this plan will do is to make your insurance work better for you. under this plan, it will be against the law to -- for insurance companies to deny you coverage because of a pre- existing condition. [cheers and applause] when i sign this bill, it will be against the law for insurance companies to drop your coverage

when you get sick or while you are down and need it the most. [cheers and applause] they will no longer be able to place some arbitrary cap on the amount of comfort -- coverage you can receive during a given lifetime. [cheers and applause] we will place a limit on out-of- pocket expenses charges because in the united states, nobody should go broke because they got sick. [cheers] and insurance companies will be required to cover at no extra charge, routine checkups and preventive care like mammograms and colonoscopy is because there are no reasons not to catch diseases like breast cancer or colon cancer before they get worse. it makes sense and it saves

money. [cheers and applause] -- and it saves lives. [cheers and applause] if you are one of the tens of millions of americans that do not have health insurance, this second part of the plan will give you options. you'll be able to get coverage. you will have confidence that affordable coverage is out there for you. and we will do this not contrary to what folks say by some government takeover of health care, but by setting up a new health insurance exchange, a marketplace where individuals and small businesses will be able to shop for an affordable health insurance plan that works for them. and because they will be one big group, these uninsured americans will have the leverage to drive down costs and get a much better

deal for them. that is how large companies do it. [cheers] that is how government employees get their health insurance. that is how members of congress get good deals on their insurance. you should get the same deal that members of congress get. [cheers and applause] if you still cannot afford the lower-priced insurance available in the exchange, we will provide you or a small-business owner tax credit so they can do it. in the first few years it takes to set up the exchange because it will take a few years to get this all set up, even after it passes, but in the meantime, we want to make sure that people get immediate help, so we will

offer americans with pretty -- pre-existing conditions some low-cost coverage that will provide them from -- provide the protection from financial ruin if they become sick. [cheers and applause] i have also said that one of the options in the insurance exchange -- many of the folks offering interest to the private exchange will be private insurance -- privateç insurers. i think one of the options should be of theoption. [cheers] -- should be a public option. [cheers] now, let me be clear. it would only be an option. nobody would be forced to choose it. no one with insurance would be

affected by it, but what it would do is provide more choice and more competition. it would keep pressure on private inters to keep their policies affordable, to treat their customers better. i mean, think about it. it is the same way that public colleges and universities provide additional choice and competition to students. that does not inhibit private colleges and universities from thriving out there. the same should be true on the health care front. [cheers and applause] minnesota, i have said that i am open to different ideas on how to set this up. but i am not going to back down from the basic principle that if americans cannot find affordable coverage, we will provide you with a choice. [cheers] and i will make sure that no

government bureaucrat or insurance company bureaucrat will get in between you and the coverage that you need. that is the promise i made. [cheers] a lot of you might think this sounds pretty good when you are talking to your friends or neighbors, but how are you going to pay for it? and that is a legitimate concern we inherited some big deficits and some big debt and we have had a big economic crisis that has required us to take extraordinary steps. we are going to have to get control of our federal budget. we have to do it. here is what you need to know.

first, i will not sign a plan that brings -- that adds one dime to our deficit either now or in the future, no ifs, ands, or buts. [applause] part of the reason i face these trillion dollar deficits when i walked in the door was because there were a lot of initiatives over the past years to pay for whether the iraq war or tax breaks for the wealthy. i will not make the same mistakes. [cheers and applause] second, we have estimated that most of this plan can be paid for by finding savings within the existing health care system. money that is already been spent, but spent badly, wasted, and abused. right now, too much of your tax

payer dollars and too much of your savings is spent on health care that does not make us healthy. that is not my judgment. that the judgment of health care professionals all across the country. we love nurses. i love them. [cheers] as i said on wednesday night, this is also true when it comes to medicare and medicaid. medicare is one of these issues that has been really distorted in the debate. i spoke directly to seniors on wednesday and i want to repeat what i said. we have stood up for four decades for the principle that after a lifetime of hard work, our seniors should not be left to struggle with medical bills they cannot pay. [cheers and applause] that is how medicare was born. it remains a sacred trust.

it needs to be passed on from one generation to the next. that is why not $1 of the medicare trust will be used to pay for this plan, not $1. çthe only thing that we will be doing is eliminating hundreds of billions of dollars in waste and fraud as well as subsidies that are going to insurance company a jamel's -- insurance co. hmo's. the other thing we want to do is create an independent commission of doctors and medical experts charged with identifying more waste in the years ahead. that is going to ensure that american seniors get the benefits that they have been promised. we will ensure that medicare is there for future generations and

we can use some of the savings would get to actually fill the gap of costs on prescription drugs that so many seniors are struggling with. we can save them thousands of dollars on prescription medicine costs. that is what we can do for senior citizens. [applause] do not pay attention to the scary stories about how your benefits will be cut. that will not happen on my watch. in fact, these folks making the accusations are the ones talking about cutting medicare in the past. i will protect medicare. [cheers and applause] and here is the best thing and is important especially for minnesota, because medicare is such an important part of the, your system, making it more efficient can help assure in changes in a way that reduces the costs for everybody. we have long known in some

places, including minnesota, offer high-quality care at costs below average. [cheers] look at what the mayo clinic is able to do. it has the best quality and lowest cost of just about any system in the country. [cheers and applause] we want to help the whole country learn from what mayo is doing. we want to help the country learned some of the good things that are going on in minnesota. that will save everybody money. [applause] the commission can help encourage the adoption of common sense best practices, everything from in duty -- reducing infection rates, hospitals teaching doctors how to work together so that when you go to the doctor's office you do not have to take a test every time you see a doctor.

you take one test and e-mail it to every doctor. common sense things like that. [applause] this is the plan i am proposing. incorporates ideas from democrats and republicans, and i'm going to keep on seeking common ground in the weeks ahead. and i said to everyone in congress, if you come to me with a set of serious proposals, i will be there to listen and my door is going to be open. but i also say -- and some of you heard me on wednesday night -- i will not waste good time with people who think it is just good politics to kill health care. [cheers and applause] i am not going to allow the special interests to use the same tactics to keep things the way they are. i am not going to let people misrepresent what is in my plan. [cheers]

i will not accept the status quo. [cheers] not this time, not now. minnesota, we are closer to reform than we have ever been before, but this is the hard part. this is when the special interests and the insurance companies and the folks who think there is a good way to bring obama down -- [boos] this is when they will fight with all they have got. this is when they will spread all kinds of wild rumors designed to scare and intimidate people. that is why i need your help. [cheers] there have been some of the pundits in washington who have

been saying, maybe you have been trying toç do too much. [boos] maybe you have been pushing too far, too fast. ["no!"] i try to remind them, i say, listen, i never said change would be easy. change has always been hard. when fdr decided that social security was something that seniors needed -- [boos] when fdr decided -- when fdr introduced social security, you know what happened? they called it socialism. but senior citizens decided, if i've got some protection in my golden years, that is something worth fighting for. [cheers] when medicare was introduced as

an idea, they said there was one to be a government takeover of medicare. imagine what seniors would be dealing with right now are they did not have medicare. every time we have made progress, it is because ordinary people band together and they said, we have got to make progress and we're going to push and prod until washington finally react, finally responds. [cheers and applause] i have always believed and -- because i have always believed that change does not come from the top down. it comes from the bottom up. it does not start in washington d.c., but in places like minneapolis and st. paul. [cheers] it begins with you sharing your service, fighting for something better. that is how change happens.

that is what is happening right now. [cheers] so, -- [crowd chanting] i * the beginning of the rally whether you were fired up -- [cheers] and some of you may have heard were that story comes from, but for those of you who have not, i will tell the story really quickly. it bears on what is happening with health care today. back in the beginning of me running for president, nobody thought i could win.

nobody could pronounced my name. [laughter] nobody except for r.t. that was the only person that believed. [applause] so, i went down -- it was right in the beginning of the campaign and i went out to south carolina to a legislative conference where i was supposed to be one of the speakers and i was sitting next to a state representative there. nobody was that excited to see me. but i really needed some support and endorsements because the south carolina was -- she looked at me and said, will you endorse -- i will endorse your campaign if you come to my town of greenwood, south carolina. i had had some wine and i was giving some -- kind of desperate and i said, yes, be happy to do it.

[laughter] [cheers] only to find out that greenwood is like an hour and a half from every place else. you cannot fly into greenwood. about a month later, had been campaigning in iowa for weeks. i had not seen my family. do i have some iowa folks in the house? [cheers] i'm exhausted. i get into greenville, south carolina, about midnight, a hotel about 1:00. i am dragging into the hotel, carrying my bags, ready to hit the pillow and suddenly, my staff says, sir -- and i say, what? [laughter] they say, sir, you have to be in the carç at 6:30 a.m. and i said, why is that? and they said, you have got to go to greenwood, like you promised. [laughter] the next morning i wake up and i

feel awful, terrible, i am exhausted. i stagger over to the window to buffalo and the blind and it is pouring down rain outside, a terrible day -- to pull open the blind and it is pouring down rain outside, a terrible day. i go get some coffee and a newspaper. there is a bad story about in the "new york times." [laughter] i pack up, go downstairs supply of raw light blows open. i get drenched. -- go downstairs, and my umbrella blows open. i get drenched. i get in the car and i am sleepy and i am mad. [laughter] we drive and we drive. hour and a half, and we just keep on writing. finally, we get to greenwood. although, you do not know you are there right away. [laughter] and it is not like minneapolis. [laughter]

so, there is a field house in the park -- and we park and we go into the field house and i get a little bit more wet. lo and behold, there are 20 people there. [laughter] and i'm already thinking about the fact that i've got another hour and half i've got to drive back. [laughter] and they are all kind of a damp and they do not look like they are not happy to be there. the state representative had dragged them to the meeting. well, that is okay. i had a job to do. i'm running for president and i shake their hand and say, how you do? nice to meet you. suddenly, i hear this voice shot out in the hall, "triet up -- "fire it up!" and i just about jump out of my shoes and everyone else? like it is normal. [laughter] they all say it, too.

i do not know what is going on and i look behind me and there's this little woman there. it's she is about 5 feet 2 inches, maybe 60 years old. she looks like she is dressed for church. she has got a big church hat. she is just grinning at me, just smiling. and she points at me and says, "fire it up!" [cheers] wait, the story gets better. it turns out she is a city councilwoman from greenwood. anita is her name. she is also known as the chant lady because she does this chant everywhere she goes, "fire it up!" she also moonlights as a private detective. [laughter]

true story. but she is well known for her chants and for the next five minutes she starts chanting. she says fired up and everybody says fire it up and i realize i am being upstaged by this woman. [laughter] she is getting all the attention and i am standing there looking at my staff and they are shrugging their shoulders. [laughter] but here is the thing, minneapolis kama, and after aboa minute, maybe two, i'm feeling kind of fired up. [laughter] [cheers] i'm feeling like i'm ready to go. [cheers]

so, for the rest of the day, every time i saw my staff i would say, "are you fired up?" and they would say, i'm fired up. i would say, are you ready to go? and they would say, i'm ready to go. it just goes to show how one voice can change our room. it can change a rule making change a city. they can change a city, it can change a state. it can change the state, it can çchange the nation. it can change a nation, it can change the world. if it can lower our costs, at a and it can make your insurance more secure. i want to know, minn., are you fired up? are you ready to go? [chanting] let's go get this done. thank you, everybody. the god bless you.

[cheers] ♪ [cheers] ♪

>> next, the supreme court oral argument in citizens united versus the federal election commission. then the moral for cbs anchor walter cronkite.

-- the memorial for cbs anchor walter cronkite. after that, the freedomworks raleigh at what -- on washington d.c. >> 1.7 immigrants each year are followers of islam. sunday, reflections on islam and the west. that is on c-span's q&a. ♪ >> this is c-span's america and

the courts. on tuesday, a new supreme court justice sonia sotomayor took her seat for the first time on the bench, becoming the 111th member on the court. the ceremony included president obama, vice president biden, and her predecessor, justice souter. chief justice john roberts has ordered her down the front steps, a welcoming gesture that has become part of the new justices formal or rival. -- formal arrival.

justice sotomayor was joined outside the court by her mother, brother, and other family members. ç

>> on wednesday, justice sotomayor took part in her first oral argument in the supreme

court. the case, citizens united purses the federal election commission, will decide the role of corporations in financing federal campaigns. the term officially begins monday, october 5. . . today's hearing before the supreme court here on c-span 3. here on c-span 3. >> the argument@ ás@@@@@n#@ @ å >> the government plans it may do so based on the austin decision that corporate speech is by its nature corrosive and distorted because it might not reflect actual public support

for its views expressed by the corporation. the government admits that that radical concept of requiring public support for the speech before you can speak were even authorize it to criminalize books and signs. 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 problem anyway. what the government has done here is prohibit speech -- i don't know how many unions there are in this country, but there are something like 6 million corporations that filed tax returns in 2006. >> mr. olson, do you think that

media corporations that are owned or principally owned by foreign shareholders have less first amendment rights than other media corporations in the united states? >> i don't think so, justice alito. and certainly there's no record to suggest that there's any kind of problem based upon that. and i come back to the language of the first amendment. congress shall make no law. now, what this court has repeatedly said is that there may be laws inhibiting speech if 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 put that back. the point that justice kennedy was making in his question is that under some circumstances and expenditure might coincide or resonate with what the candidate wishes to do, but the court looked at that very carefully and said that that might not be the case. it might be these expenditures might be counterproductive. when they are independent and not coordinated with the candid, they are more of an expression of the party spending money and so they are more of an infringement on the right to speak and less of a threat of corruption because there is no quid pro quo there. if there is, it would be punishable as a crime. >> counselor, you rely on the inconsistency with the other case. why is that not a significant distinction?

>> what the court said was that that we are not deciding that question. >> 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 this s

the most drastic of the limitations imposed by the federal election campaign act. it goes to the core of first amendment freedom. >> if that's so, this is a point that is concerning me. i don't know the answer 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 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 had to be -- what it did not involve overruling precedents of

this court that has been followed by this court. so i think that -- it did not follow overruling 150 years of american jurisprudence. there was no law at that point that said -- >> there was no conclusion of this court. this was repeating the business about amassing large funds in corporate treasuries. it is not a new idea in austin. it was repeated after austin. i think sullivan is quite distinct. the question that was posed here is, is it a proper way to resolve this case to overrule one president in full and

another in part. >> and what i am urging is that by a parity of reasoning, both of these things attrition -- 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 be barred. it has always been a matter of high level of controversy with courts at first and

understandably shying away from facing up to the issue directly and then the first ruling on point. >> have you read justice rehnquist's dissent in the bellotti case? >> i'm sorry? >> bellotti, yes, i have. >> which is somewhat inconsistent with what you said. >> it is. >> and also inconsistent with his later view, correct? >> that's right. >> yes, yes. yes, your honor. >> going back to the question of stare decisis, the one thing that's interesting about this area of law for the last 100 years is the active involvement that both state and federal legislatures, in trying to find that balance between the interests of protecting, in their views, how the electoral process should be perceived and the interests of the first amendment. and so my question to you is,

once we say they can't except on the basis of a compelling government interest 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 who created corporations as persons be birthed to corporations as persons, and there could be an argument made that that was the court's error to start with, not austin or mcconnell, but the fact that the courts imbued a creature of state law with human characteristics. we can go back to the very basics that way. but wouldn't we be doing some more harm than good by a broad ruling in a case 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 long history. for over 100 years, congress has made a judgment that 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. -- if you insist, with that inconsistent with the whole line of cases, and coats vs cincinnati, what about the thornhill document that is not cited in the breach? that doctrine is that even if they live again is tending to object to a particular form of conduct, they can raise that if the statute covers it in order that it does not have an ongoing chain against speech. " you are asking us to have an ongoing trade which is based on

speaker, content and timing and this is the chilling effect that the board hill doctrine -- steve thornhill doctrine -- the thornhill doctrine represents. 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 quid pro quo corruption. and you articulate in page 11 of your brief, you recognize that this court has not accepted that interest as a compelling interest. so isn't it the case that as you view austin, it's kind of up for play in the sense that you would ground it on an interest that the court has never recognized? >> well, a couple of points. the first thing is, as you say,

we have not abandoned austin. we have simply said that in addition to other people's money interest that -- >> where in your supplemental briefing do you say that this aggregation of wealth interest supports austin? >> i would not really call it an aggregation of wealth interest. i would say that it's a concern about corporate use of other people's money to election -- >> putting it outside, putting the 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 lots of knowledge about environment, transportation issues, and you're silencing them during the election. >> well -- >> when other corporations, because of the very fact you just point out, have already been used and are being used by the government to express its views. and you say another corporation can't object to that. >> well, to the extent, justice kennedy, that you're talking about what goes on in the halls of congress, of course, corporations can lobby members of congress in the same way that they could before this

legislation. but this legislation is designed to do, because of this anticorruption interest, is to make sure that that lobbying is just persuasion and it's not coercion. but in addition to that, of course, corporations have many opportunities to speak outside the halls of congress. the public. >> one of the amicus briefs objects response to justice kennedy's problem by saying the problem is that we've got to contribute to both parties. and a lot of them do, don't they? >> a lot of them do, which is a suggestion about how corporations engage the political process and how corporations are different from individuals in this respect. you know, an individual can be the wealthiest person in the world. but few of us -- maybe some -- but few of us are only our economic interests. we've beliefs, we have convictions, we have likes and dislikes. corporations engage the political process in an entirely 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. that is what we want

corporations to do. if you have to individuals and they say they want this corporation to convey a particular message, why can't they do that when if they did that as a partnership, it would be all right? >> it sounds to me that the corporation york describing is the type of corporation we have in this case where the members all sign on to the corporations ideological mission and the corporation has an illogical mission. >> most corporations are in distinguishable from the individual who owns them. the local hairdresser, the new auto dealership who has just lost his dealership. and he wants to oppose whatever congress when he thinks was responsible for this happening.

or what ever congressman will not patch it up by getting the auto company to on do it. -- to undo it the auto company to undo it. there's no distinction between the individual interest and corpor . . porate 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 job. it's that i, like most americans own shares through mutual funds.

you don't know where your mutual funds are investing so -- >> i understand. so it is a patternalistic interest. we, the government, have to protect you naive shareholders? >> in a world in which most people own stock through mutual funds. in a world in which most people own stock through retirement plans where they have to invest, they have no choice, i think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing or even to know the extent of this. >> in that respect it's unlike the union because the worker who does not want to affiliate with the union cannot have funds from his own pocket devoted to political causes but there's no comparable check for a corporation. >> that's exactly right, justice ginsburg. and the union context it's a constitutional right that the unions give back, essentially, the funds that any union member

or employee in the workplace does not want used for electoral purposes. >> does that mean that unions should be taken out because there isn't the same -- does the shareholder protection interest -- there's no parallel for the union? >> you're right about that. the government believes that with respect to unions, the anti-corruption interest is as strong and 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 buckley was in 1976, not 2009, after the extensive record. >> just one question that was highlighted in the prior argument, and that was if congress could say no tv and

radio advertisements, could also say, no newspaper ads, no campaign biographies? the last time, the answer was, yes, congress could, but it did not. it is that still the government's answer? >> the answer has changed. it is still true that the only statute involved in this case does not apply other than broadcasting. 441-b applies to other media, and we took the court's own reaction to some of those very seriously. we went back, considered the matter carefully, and the government's view is although it covers a full-length books, that it would be quite good as

applied challenge to any attempt to apply 441-b in that context. 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 part of the reason why it is never applied to a book is one cannot imagine very many books that would meet the definition of express advocacy as this court has understood that. >> i am sorry, we suggested that you have a history of union organization and involvement in politics. the last sentence says, in light of this, vote for this. >> i did not think it would be covered, mr. chief justice. it if they are very careful to view matters as a whole, it would not count as express advocacy. >> thank you, general? [captions copyright national cable satellite corp. 2009]

>> mr. waxman? >> not mr. chief justice, and may it please the court, the requirement that corporations fond of the coral advocacy the same way that individuals do, that is with money voluntarily committed by the people associated with the corporation, is grounded in interests that are so compelling that 52 years ago, before boxley was decided, before this was enacted, before this was never addressed, this explained that, "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." e 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 national right to work committee concluded that congress was entitled to make the judgment that it would treat, in order to address this root evil, a problem of such concern it goes to the very foundation of the

democratic republican exercise. that is, the notion of integrity and representative government. now this case, of course, is not a case that is -- >> i don't understand that answer. if that's what they were concerned about they could say all corporations with a net worth so much or whatever. that isn't what congress did. it said all corporations. >> and you cities, scalia, if a small corporation or any corporation of any sort wants to bring an as-applied challenge to 441 b or a state law analog and say, you know, i am not the problem that theodore roosevelt and lsu root was addressed at. there isn't a 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 which 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 co i think what you are suggesting it is an accounting nightmare. >> it is a nightmare that congress and the worst. >> but the wellstone amendment appealed -- >> the wellstone amendment cannot be applied. >> my response is that does not solve the problem of inhibiting -- >> they did not endorse the nra's position. >> i 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 bewhat type of corporatio be covered. and what compelling ju justification or narrow standard would bewhat type of corporatio be covered. and what compelling ju justification or narrow standard would bewhat type of corporatio be covered. and what compelling ju justification or narrow standard the new supreme court term begins monday, october 5. you could watch this program again at c-span.org. join us for "america and the courts" 7:00 p.m. eastern on saturday.

>> thousands of people protesting what they call out of control government spending marched to the u.s. capitol in downtown washington today. freedom works foundation, a conservative organization led by dick armey, organized several groups from across the country for what they're calling it taxpayers march on washington. here's a look at some of the activities on the capitol grounds. [captions copyright national cable satellite corp. 2009] [captioning performed by national captioning institute] >> hurricane relief, medicare, family planning, aid to the

arts. not a single one of us, not too much power, too little freedom. it is time to restore constitutional government. >> it is amazing. >> which focuses on stopping deaths from hospital acquired infections. her work has been published in the wall street journal, new york times, for the magazine, and others. >> the short amount of time that

the president has been an office -- >> if you think that is a bad idea, let me hear you say amen. >> everything they do this on their way, everything is distorted. that is how they get these little kids, these college protesters on their side. >> ♪ to the oceans white with foam ♪ >> watch the entire rally at c- span -- on seat span at at 4:10 tomorrow. >> next, the memorial for cbs

anchor walter cronkite. after that, the freedom works rally held earlier today in washington, d.c. then at 7:00 a.m., live, your calls and comments on "washington journal." >> a memorial service was held for walter cronkite on wednesday in manhattan. he anchored the cbs evening news from 1962 to 1981. he died july 17 at the age of 92. now president obama, former president bill clinton, cbs columnists and others share their memories of cronkite and discuss him. this is about two hours, 20 minutes. >> good morning. it on behalf of the cronkite family, and his colleagues at

cbs news, i like to welcome you to what i think will be a fitting and lasting tribute to someone who stature and influence on never be duplicated. i am happy to report that older cronkite iv is gainfully employed as an intern at our washington journal, said the tradition is alive and well at cbs news. [applause] we began today with the marine marching band playing "stars and stripes," which is appropriate because that was his favorite march and also because he was one of only two civilians -- the other being john philip sousa -- who conducted this great band. thank you very much. [applause]

my family has had the good fortune of periodically crossing paths with walter throughout the years. my dad, better known as jim mckay, worked with him on a number of shows at cbs news. in 1960, walter was a last- minute replacement for my father who was scheduled to anchor his first olympics. my father became ill, but there were not able to travel when they filled in for him. years later, they talked about how much she enjoyed his big sports assignments and my father's assignments. he said to me, if things had worked out differently, i would've been the anchor. in 1972, in munich, i company my father 18 hours straight, reporting on the massacre of

the israelite olympic team. i still remembered as if it was yesterday walking in the hotel just as the sun was coming up. my father asked for his key at the front desk and he was handed an envelope from western union. my dad read it to me and said, jim, you were superb yesterday. the profession and the industry had reason to be proud of you. congratulations. walter cronkite. it was the very first of hundreds of notes that my father received from america, and it was typical volcker -- simple, but perfectly worded. my dad said to me, it is never going to get any better than this moment right now. years later, when i got my job at cbs news, was in my office the morning of the announcement calling various anchors, correspondence, and the rest of the cbs news team.

he said walter cronkite is on the phone. i immediately stood up at my desk, added tension, took a deep breath, and picked up the phone. good morning, mr. cronkite. appear replied, hello, boss. i literally gasped and said what first came into my mind which was, please do not call me that, mr. cronkite. the fact i could somehow be walter cronkite's boss seemed to be the height of absurdity. as it is we finished our conversation, i immediately called my parents and said, you are not going to believe he just called me boss. [laughter] when i told him there was a long silence, i knew the three of us were thinking, how the family history had really come for sokol -- had really come full circle, from the early days of the 1950's to the day walter called to congratulate me. my mother had the best advice.

just make sure that you call him mr. cronkite and not walter. at our first once, called him mr. cronkite, and not surprisingly he insisted that i call him walter. i cannot imagine what it would be like to come to work every day and actually be able to work with walter cronkite. those of us in the news business are influenced every day not only by his remarkable body of work by weight he stood for all so -- integrity, perspective, professionalism, and a sense of humor. that is why he feared so well and why no matter what the story he was covering, his demeanor, his reporting, and presentation were virtually flawless. it is enormous professional accomplishments the side, it is also report to remember there was a warmth and compassion about him that is almost indescribable. those who knew him will tell you there was never hit a batter on

more loyal friend. all of us at cbs news will continue to miss him, but how lucky are we that in some small way we are able to carry on the tradition and the rock-solid foundation he built for us? and not just for those of us at cbs news but for everyone in the news business. and a remembrance and the new york times, it was summed up perfectly the life of walter cronkite means to us all. "some deaths end only a life. some end a generation. walter cronkite's death is something larger and more profound. he stood for a world and a century that no longer exists. his death is like losing the last veteran of the world changing war, one of those men who saw too much, but was never embittered by it. walter cronkite's gift was to talk about what he saw, and we

were very lucky to have been able to listen." i would say we were very lucky, indeed. thank you very much. [applause] >> to the cronkite family, his children, nancy, cathy, chip, president obama, president clinton, and all distinguished guests, friends, colleagues, and fellow admirers of walter cronkite, it is a deep honor to be here to pay respect to an extraordinary man who touched the lives of so many in such a simple yet profound way. looking out at this room, a remarkable group of people gathered for this event, i am in

awe over the abiding, powerful feelings of affection and respect that walter cronkite continues to vote in our nation. and each one of us as individuals. certainly all of us at cbs were always so proud to say that he was a member of our family. throughout his career, and until the end of his illustrious life, but we also realize that like any national treasure, he belonged not only to us but the entire world. but he did make everyone in our business and a little bit broader of what we do for a living. i would venture to say there is not a person in this room today in the profession who was not in some way inspired by walter cronkite to go into the media. it was certainly that way with me.

when i was a kid, i always wanted to work at a network. but not just any network. i wanted to work at cbs. it was the great history of the place. "i love lucy," "gunsmoke," the terrific coverage of the nfl every sunday. but especially there was walter. he was there every evening to carry my whole family through the stories that changed our world. the assassination of president kennedy. at the moment that we landed on the moon. vietnam. watergate. he told us the way it was, with an honesty and unique warmth and humanity that touched all of us so deeply that he came to be seen not only as are most trusted news man, but as a member of our common family, and next door neighbor perhaps, a friend, a cousin, or, yes, an

uncle. like sean, on my first day at cbs, walter gave me a call. i said to myself, "man, you have a cool job." it was a lovely gesture from my hero. in addition to his major significance as a world figure, he was a true gent. that came through and everything he did. he gave us the news down the middle, but he did more. he told us it was ok to react, to be human through these massive the events. and with a total dignity and respect that was his gift, he also allowed us to see is excitement, his grief, his pride, and sometimes even his outrage. in this way, he guided us through the times that we all lived in and shared. i say shared because walter was

the center of a community, a community created by our medium. the scene around our tv at home was replicated in every home around are blocked and most blocks around america. in this way, walter cronkite helped create and strengthen our entire nation at the most critical times and make us more fully aware of the values and culture that we all shared together. and the power of broadcasting. that power to bring us together, to teach, guide, build a national consensus continues to this day. but walter cronkite, more than any other individual, made it happen. we were in his hands as people and as a people, and he kept faith with that trust. he leaves us with that legacy and responsibility. we now move forward without him, and sadness at our loss, and

with a gratitude for a light so exemplary and so well lift. thank you, walter. [applause] and now, ladies and gentlemen, it is my high honor to introduce the 42nd president of the united states, the honorable william jefferson clinton. [applause] >> thank you very much. thank you. thank you, thank you. thank you. thank you. please. thank you. to the cronkite family and his

cbs family, mr. president, i think it says a lot about what walter cronkite meant to all of us that on one of the most important days in his young presidency, and a very important day in our nation's life, president obama, when he has his big speech tonight, still came to new york to honor walter cronkite. [applause] since walter is not doing the news anymore, he does not have to be quite so objective. i think i can say that he and all the rest of us wish you well tonight, and we hope you prevail. [applause]

i had a very unusual perspective on all of this. i was just a high-school kid in arkansas who had a tv for less than, oh, five years i think when walter cronkite started doing the evening news. i have to confess my mother liked hotly and brinkley. it -- huntley and brinkley. [laughter] until -- until we kept on cbs all day long on november 22, 1963. after that, we lived with walter cronkite. that is all i knew.

years passed. 1981, he left. i had formed some real opinions as a young student. i thought that he had the most trusted news program because he had an inquiring mind and a caring heart and a careful devotion to the facts. because you really sensed that in the words of his own autobiography, he had a deep aversion to group conformity. he was always looking for the story, not the story line. there is a big difference. but after he left cbs, i did not think much about it. i looked at some of the specials. then, when i became president,

we were vacationing on martha's vineyard together. we would be thrown together at dinner parties or receptions or whatever. he started talking to me about his young years, before tv, when he worked for upi. when he, like ronald reagan, did thirdhand radio accounts of sporting events. it was in kansas city before it was a hot town, and houston before was a great metropolis. and i just wound up being crazy about the guy. for reasons that had nothing to do with all the things that we are here honoring him about today. i thought he was one of the most interesting man that i ever saw. i thought a lot of his qualities that made him great and television he came by honestly.

keep in mind, one of the most moving accounts to me in the story of his own life was dancing with his mother on her 100th birthday. at the end of their dance he said, i thought she was exhausted. she admitted her medicine. i came back and she said, no, walter, i wanted a martini. [laughter] so, that is the guy i got to know. and we continued to see each other after i left the white house. we would be thrown together at one event or another. but i thought he was an astonishing man. i liked his inquiring mind and his caring heart. and he did something for my

family that was so simple. even now, is hard for me to talk about. but in a very tumultuous summer in our personal lives, 1998, we were up on martha's vineyard. walter cronkite pick up the phone and said, betsy and i want you to go sailing with us. we will just go out and sail around. he said, somebody might take a picture of it, but so what. i will never forget that. at the time, i could have done with a picture of walter cronkite. [laughter] [applause] i say this because that was not something he had to do.

he was 81 years old. he was a good man. yes, he was a great journalist, and he lived a fascinating life, which made him long to know and understand, share his knowledge and understanding. he was almost painfully honest. one of the most interesting things to me about his autobiography and some personal conversations we had later about trying to advance the public discourse was what he thought about the limitations of television news. what he spent his whole life doing. he said, i did the best i could, but really i think people should read more newspapers. could you imagine anybody else confessing to that? so i am here to say thanks to

his family and to his wonderful late wife. for a man who was important in all our lives, a great citizen, and profoundly good human being. that is just the way it was. thank you. [applause] >> it is hard to follow bill clinton. i am jimmy buffett. [applause]

walter was my sailing body, and i cherish that as long as i will live. i always made a pilgrimage up to martha's vineyard, not only the sale with walter, but to figure out what walter thought of the world as it was. buas a cbs man and cbs audience, as we sailed around, it was obvious that we talked a little bit more about sailing and other things as well, particularly when you got back to the docke and the rum drinks came out. one time, my dear friend ed bradley called me and said, i need to ask you something. i am thinking about wearing an earring on 60 minutes. [laughter] i had seen this hearing at the jazz festival and new orleans when he was playing timbering. i thought, 60 minutes?

this is going to be good. he said, what you think? i said, what i think is wheel to asked walter. i said i am going to go sailing with them and i will pass on your idea. so we went out and had a good sailing day and came back again, sitting there at the helm. it was the right time, the sun was down, the room was out. i said, walter, ed bradley called me and said he was thinking about wearing an earring on "60 minutes." he said, it does not matter whether he is wearing an earring as long as it is a good story. that was walter. but, he said, if i was going to wear an earring on "60 minutes," i would wear one of those big, long dangle the ones. [laughter] so to my sailing friends and my sailing buddy.