the benchmark that year was u.s. vs. lopez, the first time the court had struck down an act of congress on the grounds that it had exceeded its commerce power. the rehnquist court in 1990's seemed to be coming out swinging on areas like federalism, church and state, and others. .

his biggest problem may be his twoway nature. he may be beautiful and bubbly one minute but difficult and quarrelsome the next. now, that's the six-year-old. i don't know whether that fairly characterizes the roberts court age six or not. but we'll find out during the morning. during those several terms in which the roberts court has been in being, the first term i won't even mention because the court wasn't fully complete until 2006. but by the 2006-2007 term, you begin to see the assertion of more conservatism on the court, clearly a result of justice alito having replaced justice oh conner in areas like abortion, upholding the federal partial abortion act, race in schools, the seattle and louisville school cases, areas like religion, holding that taxpayers did not have standing

to challenge a white house initiative. those are samplings of case that is came down that term that gave one a sense of what the roberts court might be like. the next year, the 2007-2008 term you could see what the press likes to call ideological splits in the court in some of the terms' biggest cases, the gun case, the guantanamo detainee's case, a case involving capital punishment for those who rape children, conserve tivity's biggest win was d.c. versus hiller, a 5-4 striking down the gun law in d.c. the gun law did tip the other way in kennedy strerssuss louisiana, dealing with the death penalty for rape of a child. 2008-2009 term, that was an interesting how commentators like to put labels on the court and that was the year people were talking about incrementalism or minimalism. that the court was going step

by in a conservative direction but step by step. examples would have been the new haven firefighters case where the court resolved that case on statutory grounds avoiding a difficult 14th amendment question. another example would be the northwest austin case, involving preclearance under section 2 of the voting rights act of the 1965 where the court did not reach the 15th amendment in that case. so the pattern was emerging by the following term 2009-10, that's the term before the present term, the conventional wisdom by that point had become i think certainly the press would have said there was a liberal block and a conservative block each four justices with justice kennedy as the swing vote. and that's the pattern you saw in some of the important cases that term, like citizens united, the famous campaign finance case, mcdonald versus

city of chicago extending gun rights to cities and states beyond simply d.c. well, that brings us up to the present time. the term my colleagues will be looking at during the morning. and it seems to me that let me put several generalizations on the table and we'll see whether they stand up or not and i invite my colleagues to agree or disagree as they see fit. first clearly is the conservative trend in the court , the importance of alito replacing oh conner on the court. one political scientists did the study of the 44 justices who have sat on the court since 1937 and by that survey of the six most conservative justices, four are still serving on the present court. that report said roberts, alito, scalia and thomas. but if there is a shift to the right it's eepssodic, clearly not in one way only because there have been results that go the other way. the bude i hadion versus bush

case and i mentioned kennedy versus louisiana. secondly, i think you could argue there is more of a correlation than there used to be between a justice on the court and the appointing president of that court. there was a time when one was struck by the deviations, the behavior of justices blike blackman or suitor or stevens who turned out on the court over a period of time to behave rather differently than one might have expected when first appointed. it seems that's an era that is now gone. it seems one can find more predictability in behavior of justices in terms of what you might have expected when they came to the bench. in part i think that's the fruits of the debate that went on going back to the reagan administration when the reagan justice department clearly had more of an agenda of the kind of people they would like to see on the supreme court. thirdly, i would assert that

judicial activism is not dead. now, we could spend all morning defining judicial activism, whatever it means, we have a general sense afit, the warren court was activist in a liberal sense. it seems to be on the court's other wing. so judicial activism i would say is still with us. if the term that ended in 2009 was a term of incrementalism or minimalism, it seems to me that might have passed. the fourth comment is the role of the chief justice from whom we just heard this morning that it seems to me that hist will probably record that it is properly called the roberts court when they fairly debate that. that's been a historical question. is it appropriate to call the court really the court of the chief justice who normally leads it but certainly the figures in this term but the

previous term chief justice roberts was in the majority something like 92% of the time. more than any other justice on the court. fifth, justice kennedy. he clearly holds a certain important role on the court. people like to talk about the swing vote. if there is such a thing kennedy is a more conservative swing vote thano conner was before him and that seems to make a difference in areas like abortion to and race to give two examples. changes on the court's left. when stevens left the court, i think in many ways he had emerged in recent years as in many ways the sort of moral and tactical leader of the more liberal wing of the court. his years had certainly seasoned his ability to play that role. his departure then leaves the question will someone step in to fill that void. we now have justice sotamayer and justice kagen as the two most recent additions to the

court. will they pick up that mantle of leadership? it's too early to tell. but mention was made this morning in the discussion between the chief justice and judge wilkinson of the pace of oral argument. that clearly is the case. it's faster, quicker, tougher than perhaps it was 25 years ago, and it's notable that justice sotamayer in particular and also justice kagen appear not be be sitting back. they're prepared to leap in and justice sotamayer strikes me as particularly active as she was in the california prison overcrowding case this term. on the other side of the court i think we're now familiar with the roles played by justice scalia and justice thomas. thomas has become to me one of the most intriguing figures on the court because he seems willing to reconsider almost any precedent however old it might be. it doesn't matter how long he has been around. he's certainly willing to take a fresh look at it. we know about justice scalia's

role as well. justice alito is to me also emerging as one of the more interesting figures to look at on the court. there's a tendency to sort of lump him in with the chief justice, they obviously is a high correlation of agreement in their voting patterns. but there are interesting cases i'm thinking for example the first amendment, the case involving, well we will be hearing about snider versus phelps this morning, the funeral protest case 8-1 where justice alito was the lone dissenter. recalling a case about videos, depicting animal cruelty where once again he was the lone dissenter. so he is i think coming to have his own voice on the court. the final comment i want to make is to say on the table the question talked about on the press and comment tators. is the roberts court a

pro-business court? some of the cases we'll talk about certainly are case that is the business community cares deeply about and liberal groups have labeled the roberts court pro-business and i think that cry was heightened by citizens united last year when it was argued perhaps mistakenly that certainly one reading of that case was it was an invitation to corporations to pour money into politics. business interests must have been heartened by some of the decisions this term. the chamber u.s. chamber of commerce famously involves itself in a number of supreme court cases. they must have liked the wal-mart's decision in which class actions become more difficult to maintain. they must have liked the at&t case out of california where the use of standard form contracts is going to be made easier for corporations. wednesday of this week there were two cases that drug companies would have liked.

the preempletion scace from, is one, and a commercial speech case being another. so there are some cases that clearly seem to take a whole sale view of the matter to be pro-business. but the other side of the picture has to be considered cases like employment discrimination cases where the court appears to have been favorable to employees challenging discrimination, for example, saying that an oral filing of an oral complaint would do. it need not be a written complaint. expanding the definition of what one means by retaliation. these clearly were favorable to employees. we'll be talking about preempletion cases and by no means did all those fall in the favor of businesses which seem to favor state laws. the arizona immigration case is clearly an example of that. and there are others. and finally a case that the chief justice wrote involving concluding quite clearly that

corporations do not have a personal right of privacy in the cases involving freedom of information act. if you like the flavor roberts opinions that's a good one to read. so i think we have a lot to talk about this morning. we have some very good people up here who are primed to go with it. i might add, we had thought about adding to our agenda this morning some discussion of the health care litigation which is now working its way through several circuits including the fourth to as you know two district court opinions and this is the circuit. we've decided we'll defer that and not try to take that up today. maybe the next panel that meets two years from now that maybe something out of the supreme court by then to talk about. having left that off the table, that still gives ause lot to talk about. so with those general thoughts simply to set the stage, we are going to sort of proceed through several major areas. i remind you that we're not

trying to do everything. we hope that what we do have to say will be of interest to you. we want to start out looking at some administrative law cases and also perhaps privacy and state secret cases that came down this term. adrian would you like to pick up in that area? >> thank very much, and i want to thank our fourth circuit hosts for giving me the chance to participate in this event. i think the administrative law part of the docket is always the most thrilling part of the supreme court term. maybe some of you may not initially see it that way but i'll try to win you over. what i will do is to identify some administrative law principles that emerged from the term as winners. some that emerged as losers. and one very important one whose status is now i think under a bit of a cloud. so let's start with the

winners. a major winner was the shevpb doctrine. it expanded its empire even farther. the expansion continues and it now takes in the treasury department and taxing statutes. so when mayo foundation versus united states, the chief justice wrote for unanimous court and held that shove rn holds the standard. along the way the opinion displaced an old precedent beloved by tax lawyers called national muffler from 1979 tand chief justice wrote in very strong and striking terms that the factors is the oit were just irrelevant. so he said whether the agency's been consistent or inconsistent in its interpretation is not relevant for shevpb purposes. the antickty of the revelation and whether it was enacted contemporaneously with the

statute are neither here nor there. it is immaterial whether the regulation was prompted by litigation or not and immaterial whether congress' delegation of authority was general or specific. so this is a very robust version of shevpb with very large muscles. and i think that the chief justice approach again for unanimous clerk will have broader implications for the future. what is striking is the rationales the chief gave for this approach. he said the main one was the intrinsic value of uniformity of agency action. he also mentioned agency expertise given the complexity of the tax laws. there's something missing here. there's something notably absent. and the thing that's notably absent is the political accountability rationale for shench which in its original formulation said that

presidential administration would enhance the democratic character of regulation through the electoral connection. i think it makes perfect sense to downplay the accountability rationale for shevron if the court is interested in increasing the uniformity of federal standards of judicial review of agency action. the reason that makes perfect sense is that lots of the courts cases and cases in the circuits involve regulations promulgated by independent administrative agencies like the federal reserve and the fcc, both of which were before the court this term. the accountability rationale would have a hard time covering those cases because at least in theory the accountability to the president of independent agencies is atten wutted. so the deliberate owe mission of the accountability rationale

suggests to me that the court is very serious about tidying up judicial review of agency action under a unity powerful shevron framework. another conspicuous winner was auer that is deference to an agency's interpretation of its own regulations. two cases, chase bank versus mccoy and talk america versus michigan bell telephone the court deferred to interpretations of agency regulations by the agency. and strongly underscored its commitment to doing so at least where the regulation does not simply parrot the language of the underlying statute. one of the terms most ambitious theatrical concurrences perhaps was issued by justice scalia in the talk america case. and he said he has come to

doubt whether our deference is even constitutional. for us administrative lawyers this is a big deal. aur deference is part of the ordinary tool kit of administrative law. and if it's unconstitutional that would be big news. justice scalia said that it seems contrary to fundamental principles of separation of powers to permit the person that is the agency who prom you will gates a law to interpret it as well. and he derived that rationale from an article by my friend and colleague john manning. now, all this puts me in quite an awkward position having clerked for scalia and being john's friend and colleague. i find the argument quite unconvincing and i want to tell you why. i think it sweeps far too broadly. it sweeps much more broadly than the limited context of aur anyway. most agencies both prom gate and interpret rules.

if the fusion of law making and law interpreting authority is constitutionally suspect, then the great bulk of the administrative state is constitutionally suspect. its hallmark, that is the hallmark of the administrative state is this very combination of functions in administrative agencies. if that's so, then i think justice scalia should really be talking about some sort of revival of the nondelegation doctrine. at a minimum invoking the argument to overturn the aur doctrine is like using a hide jen bomb to kill a mouse or something like that. it's far too consequential. and finally, let me be pragmatic for a second. if we adopted justice scalia's view, the main consequence i predict, if these things run certain, i think the main consequence would be to encourage subtuition at the margin from regulation to simple case by case adjudication under ambiguous statutes. the agency would have every

incentive to switch to that. and if we're worried about agency discretion or something like that, that have comb as applause by worse than a regime where agencies pass regulation and then get aur deference for them. well, in any event, no other justice joined justice scalia's concurrence in talk america. i see that as confirming aur's very high status on the current court. i don't think it's going anywhere soon. ok. now, let me mention a clear loser from this term. besides national muffler, the other clear loser was the chanry principle against post hawk rationizations by agencies. now, i don't want to overstate this. there's a core situation in which an agency passes a rule or adjude cates and then tries to change its rationale during judicial review. that's still a no-no and i

think the court will say that. hour, several decisions from the term were very relaxed about the prospect of post hock rationizations in other context especially the aur context that i mentioned. in both chase bank and talk america, the agency interpretation came in and ameekcuss brief offered either to the lower federal courts or to the supreme court itself and the court simply said, well, that's ok. this reflect's the agency's considered position. that was the formulation. i think this converts the whenry principle from something like the rule or presumption into something like an add hoc inquiry into whether all things considered the agency is has taken a deliberate position may come in a brief for all we know might come in a letter. for now, that logic is confined to the aur context.

or sorry, that approach is confined to that context. but i don't see why the logic should be confined to the aur context. it would also be possible to adopt the same approach in straight forward judicial review of agency action situations. we should watch to see whether it spreads to other do mains. this might be a reals innovation in administrative law from the roberts court. ok, finally, i'll mention a crucial administrative law doctrine that i think is under a bit of a drizzling cloud after this past term. it's the me doctrine that tells us when to apply shench in the first place and has been the source of major controversies over the past ten years in administrative law. meed had some good moments in the past term but it also had some bad moments. a good moment was that mayo did take it as the controlling

framework for deciding whether shench applies. on the other hand, there were at least four or five bad moments. first, meed is inherently intentioned with mayo's emphasis on uniformity in federal revee of agency action. a major rationale for meed, if you go back to justice suitor's opinion, was to taylor deference to variety. that is to have flexible contextual approaches to judicial review of agency legal interpretations. by contrast, it was justice scalia's dissent in meed that emphasized the need for uniformity of judicial standards of review. if uniformity is now the watch word, then i think meed starts out with a strike against it. all this sort of broke out into the open at the oral argument in chase bank. there was a major debate about meed and in particular whether meed could be squared with the idea of giving aur deference to

ameekcuss briefs to things agencies said. meed it seemed to say that informal procedure like that wouldn't get deference or might not get deference or was at best suspect and said that what agencies needed to do was set forth their interpretations and formal rule making or adjudication or notice on comment rule making. so several justices at the oral argument said we can't do both of these things. we can't both do meed and do aur deference to ameekcuss briefs. that's bad for meed. we know that the court is committed to aur deference in ameecuss briefs. we had two votes to that effect. so what happens to meed in that world? the chase banks opinion by justice sotamayer dealt with meed in the following int resting way. it said semi-simply nothing about it. so there's not one word about made in the opinion. i think that's bad formade.

if you purport to be the general frame work for judicial review of agency action and people aren't talking about you or at least sometimes not talking about you, that's not a good thing. the second ominous feature of all this was justice kagen said at oral argument, well, maybe aur and meed are inconsistent but we're not so sure we've got it right in meed anyway. i'm not so sure who the we is in that statement but if it includes justice kagen, that could be a major reinforcement for the critics of meed on the court. finally, of the original 8-1 majority in meed only four remain. that is kennedy, thomas, ginsburg and breyer. sca lease is a sure vote to overrule, kagen appears skept 8:00, sotomayor doesn't seem to think it's necessary to discuss meed, i think there's a real question whether meed will

still be the law five years from now. not saying it definitely won't be but it's under a cloud. ok. thank you. >> mike,. >> i just want to jump in very quickly. all these types of deference and so forth may strike a lot of people in the audiences i think audience's word was thrilling. i think the technical term for this is a snood snooze. but they really are, i want to add, i think they >> very important because it is arguments over these questions of deference in which the very idea of separation of powers and the rule of law are worked out in the context of the administrative stay. and i would just like to at least maybe caution against assuming that justice scalia's new campaign against aur deference is over just because he lost this particular term.

justice scalia is a very smart guy and he is very persistent. i remember when he first introduced his campaign against the use of legislative history in ordinary statutory interpretation and it seemed bizarre and i don't think he had any other supporters at the beginning. i would not be surprised if his critique of aur deference is be similarly gain adherence over time because it does have i think a very important grain of truth to it in our system that is when a single body does both prom gate the law and interpret the law, the rule of law is over because the separation between law interpretation and law prom congregation is absolutely essential to the law

having some kind of an independent inttegget. aid ran does say that maybe scalia's view of the doctrine would make it worse because it would induce agencies to engage in more activity on basically a case by case adjudication system. maybe that's so. but i think that there are good reasons why over the last 50 years agencies have not found caste by case adjudication to be a very effective way of asserting power. and i think a return to a separation between rule making on the one hand and adjudication on the other is something that we should applaud and encourage. and to the extent that the aur doctrine makes those two a function emerged i'm inclined to think scalia is probably not right that it's

unconstitutional. but that it trenches upon important constitutional values i think is an important point. >> could i ask a question. building on mike's comment. if you were to ask the founder generation to sketch out a few basic principles of what they thought constitutional government was about reading john lock in the social compact and the like, i suspect they would have include it had nondelegation principle. and i'm wondering, i remember i mentioned earlier this morning the revival of federalism by the rehnquist court. you had a time in the 80's when rehnquist was sort of a lonely voice there and he and others fanned federalism back into effect as a constitutional part of the american edfiss. and i'm wondering, what is the prospect we'll see any resurgence of the nondelegation doctrine? it seems to have been dead and buried in such a long time that i don't sense any interest in the court stort of revisiting that issue. but do you think the sort of issue you're talking about this

morning might force out of that? >> well, i have long complex views on this. i'll just say two sentences. first, i disagree that the nondelegation doctrine has originalist foundations. if you look at the legislation passed in the first congress, it included five or six delegations that today we would think of were essentially blank check delegations to the president to do various things with nothing like an intel yidgible principle. in my view, the nondelegation doctrine is a late 19th century creation by lawyers anxious about the nascent administrative state and that that experiment lasted until the 1930s and then basically collapsed and shows no signs of revival. the nondelegation doctrine leads a ghostly existence with

people talking about it all the time but it never actually manages to bite anybody. and even justice scalia has written one of the most sweeping modern opinions upholding delegation in a case called wittman and says that he sees no prospect for reviving the nondelegation doctrine. so i think mike's correct that the backup project then is to talk to, try to chip away at the edges like in the aur context. if mike and i have a disagreement, maybe it's a predictive one. i think the lesson of the last 50 years is that agencies are surprisingly sensitive to changing incentives for subtuition between rule making and adjudications so in the 70s when the court in various decisions increased the benefits of rule making, then agencies engaged in more rule

making. and i suspect that if the court somehow got rid of aur deference and increased the benefits of adjudications then agencies would engage in more education. but that is just a prediction. >> thank you. i wanted to move us now to the second major topic and it's one that occupied a great deal of the court's time this term. and that is the first amendment cases. it was a robust part of the docket. and heather and mike respectively are going to take up some of the major cases. i've asked hetser to think about the public finance case out of arizona. you might want to make some comment out of that case. and also heather will have something to say about snider versus phelps. which was one of the headline grabbers. then we'll move on to mike and talk about some of the other very important first amendment cases on the docket. so heather may you jump in and start that out. >> int to thank for inviting me. i got a taste of southern

hospitality yesterday when i arrived i told someone that my husband was in europe so i was here alone and she immediately invite me to join the entire south carolina contingent. i hope you'll forgive me i herd they stay up until dawn so i thought it might be useful to sleep a little bit until last night. so if you were thrilled with aid ran's administrative law decisions, fasten your seat belt because the first amendment is where the block busters are this term. and one of those block busters we think is going to be mack combish. so that is one of the cases that we've all been waiting for and we are still waiting. this is the case involving the challenge to arizona's public finance system and if this challenge succeeds, a number of state public financing systems may fall with it. indeed if the court writes broadly bubble financing systems across the country may be in jeopardy. so arizona has a voluntary public finance system.

candidates who accept public financing receive a lump sum grant if they agree not to raise money privately. a publicly financed candidate is eligible to receive additional funds in arizona if his opposition outspends him. and by the term opposition, i mean not just the candidate, the publicly financed candidate is running against but all the independent groups who are running as on the privately financed candidate's behalf. petitioners, which is a group of groups, challenged this law on first amendment grounds and here i will say as election law is the sex drugs and rock and roll of the first amendment. so these guys won at the district court but they lost at the ninth circuit which found that the matching funds provision does not prevent any speech. and it does not limit any expenditures. therefore, the ninth amendment there's only a limited burden here on petitioner's first amendment rights and they found it was constitutional.

a lot of the briefing in the case was devoted to one decision. the decision called davis versus s.e.c. and political junkies you'll know that this is a millionaire's amendment case in mccain fine gold. so mccain fine gold has a provision which trebles the individual's limit for congressional candidates when their opponents were self-financing their own election. petitioners say if anything this is an easier case than davis. the millionaire's amendment only allowed the publicly financed candidate to raise more money. in the arizona scheme the publicly financed candidate automatically gets them more funds. and they also have compelling facts here to make their case. one of the candidates in the case was running against three publicly financed candidates. so every time he raised $10,000, $30,000 appeared on the other side to oppose him. now, in many ways i think it is

a stand-in for a much larger divide in campaign finance. for several years, the two sides have been utterly unable to find common ground. and that's because they began with different premises about the role that money plays in elections. one side sees substantial expressive dimensions to both contributions and expenditures. and the other side simply doesn't. it's too crude to boil down the debate to slowingance like money is speech or money is money. the positions on both sides is actually more nuanced. nonetheless, for the past ten years the only middle ground that has been found in this fight is to stick with buckley versus val aho which had the split the baby approach. so the problem is this. no one admired buckley. very few people think it was even close to right. so while the compromise has

allowed the court to cobble together a majority or plurality opinion, it has not helped build a common intellectual framework. davis and mack combish look like the money is speech debate writ small because one side finds it very easy to imagine provisions like the million nares amendment as punitive, punishing a candidate for his successes. so in the petitioner summer they begin with a great anecdote by janet napolitano. at a debate, she pulled her opponent aside. she was being publicly funded he was privately funded and she thanked him for his fund raising efforts. he had a fund raiser that raised $750,000, and she got $750,000 in response. napolitano said to him, i am quite certain i am the only democratic gove snore in the country for whom george bush held a fund raiser.

the other side meanwhile finds it very, very hard to figure out why public finance systems that impose no constraints are remotely troubling. just as kagen said it seemed like the system promotes more speech all around and that is the core problem in campaign finance. if they cannot agree on the basic premise of the doctrine, no balancing test, no factual record, no choice about the level of scrutiny is going to bring agreement. whatever the results in this case we should expect the doctrine to remain highly unstable going forward because this is about moving toward consensus, it's a death match between two competing views. and for those of you with children or grandchildren i'm tempted to quote harry potter neither can live while the other survives. let me say one more word about how that will sit. so some of you may remember there was this other campaign

finance case called citizens united and it created quite a stir. in my view however the press has entirely missed the significance of that case. and the arizona briefing confirms that fact. now, the press has told us that citizens united gave corporations the right to speak. and i will just tell you that is just nonsense. corporations enjoyed robust speech rights before citizens united. indeed, it's a flood gate that they opened. they didn't open with citizens united. they opened with a case that happened a few years before that received almost no press attention. at most, citizens united expanded the right of corporations to be more specific about their independent expenditures. so if i can just put it in somewhat crude terms. before citizens united, corporations could run an ad that said senator x kicks puppies. call senator x and tell him to

stop kicking puppies. now you can run an ad that says senator x kicks puppies and you shouldn't vote for him. the real significance is what it said about congressional power and that fact has been utterly ignored by the press. but it feetrd heavily in the briefing and i expect to be a speech heavily in the decision as well. so as you all know when congress regulates under the first amendment it has to have a good reason for doing so and the reason that congress is long invoked is corruption. prior to citizens united, the liberals in the court had gradual expand it had definition of corruption to go well beyond quid proquo corruption. quid proquo corruption is when i give you money and you give me a vote. they expanded to include my old boss that the donors are calling the tune. indeed at times the court suggested that just the mere appearance of undue influence

and access was an appropriate ground for regulation. and that approach gave congress a great deal of room to regulate. citizens united seems to have cut back dramatically on that approach. it has returned us to the definition of corruption we saw way back in buckley versus valet ho where back mostly to quid proquo corruption. so while progressives mourn the court's holding when it overruled austin which is the one campaign finance case that ever invoked the equality rationale, in my view the most important minds in citizens united is justice kennedy's observation that ingrasheation and access are not corruption. the broad, the even nebraska luss view of corruption that was endorsed by the liberals allowed congress to regulate broadly without ever mentioning the word equality and that was what was at stake in citizens united. while the press has missed the

point the courts haven't. lower courts have begun to dismantle on precisely these grounds and advocates have missed lissed the lessons either. so the plaintiffs rely heavily on the fact that arizona almost has some of the nation's most stringent regulations obcontributions and they argue that any concerns about quid pro quo corruption is taken care of by that scheme. and given that corruption is the only grounds for regulation here, why do we need more? so ask in essence why arizona even needs a public finance system. publicly financed candidates are no less successful to trading votes for gem bags full of cash than privately funded candidates. and this i'll note why it's so fun because they did have a case involving gem bags full of cash in arizona. so what then is the justification other than the now ill listity equality

rationale? the court doesn't need to answer that question here. but how it answer it is question, whether it does it in mccombish or whether puts it more direct in the future, the answer to that question will determine the fate not just of public finance but of campaign finance more generally. it may not be the case that resolves the question but the very least it is likely to give us a hint as to which direction the court is going to take us. the second case i have is also i will say one of the block buster cases of the term and it's called sthider versus phelps. so if there was ever a case to pull at justice's heart strings it was snider. marine lance corporal matthew snider was killed and at the funeral a man named fred phelps and the rest of his church picketted involving a variety of despicable signs. signs celebrating the death of american soldiers anti-catholic attacks.

west borrow church you may remember routinely boycotts the funerals of soldiers -- routinely pick ets the funerals because they believe that it led directly to 9/11 and the casualties of the iraq war. picketing funerals of private individuals has garnered a lot more publicity than it deserves. his father sued phelps and his followers for the intentional infliction of emotional distress and he was awarded millions in sexenstri and punitive damages. the district court reduce it had punitive damages but allowed the sexenstri damages to stand as you know the fourth circuit reversed. indeed, justice alito's vigorous dissent urged the justices to make an exception where instances of private individuals are subject to personal attacks during a funeral or other moments of

intense emotional sensitivity but the court in opinion by the chief justice resisted the urge to carve out an exception. the case reads like a classic first amendment decision. concluding that much of the west borrow protest met issues of public concern, the u.s. position on gay rights, the iraq war, the catslirk church's recent ped feelia scandals. the courts including that it fell within the protections afforded by the first amendment. the fact that all of this occurred at a private funeral did not make the speech any less public in nature in the view of the court. given that the picket was peaceful and in full accordance with the existing time place and manner restriction it is court held that the picket was protected by the first amendment notwithstanding its purpose. despite the straight forwardness of the opinion there were signs that this wasn't the easiest of case force the majorities. while maintaining a studied neutrality the court does notice that others might well

find the west borrow church's message offensive and of negligible value. moreover the court was very careful to avoid some of the anlitic rabbit holes it might have tumbled into had the court written a broader opinion. so for example the court carefully classified the speech as mostly dealing with issues of public concern, thus avoiding the questions involved in some of the speech directed at snider himself. for procedural reason it is court also had the luxury of ignoring the online diatribe published which i should note was not an option available to the fourth circuit. in many ways this case is of a piece with a first amendment juris prudence that requires us to tolerate the intolerant, to maintain a pre-market place idea even for those ideas that are surely wrong. a first amendment scholar now president of columbia has argued that the first amendment is important as much because it

signals our willingness to allow despicable speech as for the rights of the speakers themselves. in his view it's our capacity to tolerate the wrong headed even the intolerance that makes us who we are. and snider very much reeds in keeping the w that tradition. but snider leaves open as much as it resolves. it reads as a simple case but it may be deceptively so. the courts' assessment of the facts that this is predominantly a matter of public concern and its failure to grapple directly with the speech that was direct ds specifically at snider himself those things enabled the court to write a nice clean opinion that left aside the difficult questions about how far the first amendment analysis would push us where we had more obviously private speech involving more obviously private harm. those questions it seems to me snider leaves for another day.

i have a question. the question i have for health ser what refers to what you called the so-called illicit or the elicit equality rationale. and i remember at the oral argument in davis, justice scalia announced this idea in his way. what if we find that one candidate is more eloquent than the other? should we require the matter of law that he speak with nebles his mouth? and i don't think any of us are inclined to require candidates to speak with pebles in their mouth but i do wonder whether

the actual rationale animating a lot of campaign finance is this idea of if not leveling the playing field making it less unequal. the concern is intuitive which is those with a lot more money get to speak a lot more and the knches track everyone else. i don't think the court is going to accept this rationale but i am interested in whether you think that is what is moving the court -- what is actually moving a lot of campaign finance legislation and whether unthere is something to it. >> question related to that which is so what about the self-interest of lors? because one thing that heather said that i totally agree with is that one of the striking things about citizens united is the lack of deference to congressional judgment. but she didn't say why the court has hest tent to defer. and the reason that in the context of campaign speech the legislatures who are writing

the rules are players in the game and they understand extremely well who wins and who loses from various regimes of campaign finance so-called reform. and the essential problem is this. incumbents are in power. it is easy for incumbents ro to raise money for their reelection campaigns and in small, in appropriate small contributions from large groups of interested people. it is difficult for an unknown challenger to be able to raise the money even to be able to compete. and so there's a persistent suspicion that all of the efforts to make it more difficult to raise money for campaigns is really in disguise not for egal taryn concerns whether they are right or wrong but for incumbency protection. >> so on the equality versus

corruption debate, i will just credit your former colleague david straws. and david strause argues that it has to be about equality for the following reason. as long as we're assuming that you're giving money to the candidates appropriately, so you're not giving them gem bags full of cash. what you're saying is that everyone can only give a certain amount of money to help the candidate win so it's not lining his pockets. it's making it more likely that he is going to win. and that you could calibrate how much you supported a candidate, that it's actually a very good thing to give money to help someone win. so then he says if that's the case, why would we possibly worry about giving money just to help the candidate win? and the answer has to be at bottom we worry that if people all have one vote, they don't all have the same amount of money and underneath it i think it does animate the vast majority of campaign finance.

and it's interesting that even now when they try to pass laws and they know equality rationale is not allowed they fall into the trap of talking about leveling the playing field or something like that. those are the terms that signal the real motivation behind these cases at least when they have their public face on. turning to mike's question about private face, all of election is driven with this problem. the foxes are guarding the hen house and when the foxes guard the hen house they're not likely to do much to help the chicken and we are the chickens. so what should courts do when they look to the regulation past by legislatures? as long as we have the system we do, which is a partisan system where self-interested legislatures pass the law i think the only way to approach is to give it a hard look, to be skeptical. because no campaign reform, no election reform generally ever gets passed unless it's in the interest of legislatures.

and that's just a fact. and what you have have to hope is that occasionally the interests align. it's not always true. it would give redistricting where legislatures have no interest in serving their constituents. they want to pick their constituents. so i am actually with mike on this question which is that whenever you have campaign finance legislation you have to give it a hard look to make sure that the incumbents aren't serving their own interest to make sure that one party isn't using a seemingly neutral regulation to hurt the other party. these are routine problems and i think it is appropriate for congress and for legislatures to receive less deference than they usual do on these questions. >> i want to offer a few thoughts about snider and phelps. i do think it's one of the most important decisions of the term. on the merits, i think the court got it right. and it was instructive for me and maybe for all of us to

monitor our own emotional reactions as we read opinions. the more angry and upset i got by the facts and what the church did, the more i became persuade that had the court was right that their speech was constitutionally protected. i don't think this was a case primarily or really much at all about separating protestors from a father who wants to mourn the loss of his son in peace. i think the facts make clear that there was in fact the church had every right to be where they were and they in no way disturbed the funeral. i think it was about suppressing a message altogether and i think the court was right to resist the repressive urge. i think snider like the stevens case illustrates a very interesting 8-1 split on this court and certain first amendment cases. first amendment cases, values, collide with norms of community, norms of decency, norms of respect for basic

human dignity and sometimes the dignity of nonhumans, animals, as well. i think there is an overlapping consensus on the roberts court in these kinds of first amendment cases. i don't think it makes sense any more to talk generally about what it means to be a liberal or conservative in these kinds of first amendment cases and there's also one consistent dissenter. and the last itcht to offer about snider, it's more theatrical in nature. it doesn't speak to the doctrine. but i do think it ill luminates what was going on in this case and particularly what's going on in dynamic between the roberts majority opinion and the alito dissent. and here i'm going to rely on the scholarship of robert post who is now the present dean at the yale law school. so he is identified attention in these kinds of first amendment cases between the first amendment as a guardian of our democracy and the common law torts as the guardian of

our community. and snider illustrates perfectly that there are times in which these two values clash irreconcileably in a particular case. but i think more subtlely in very significantly, snider also ill luminates the extent to which these two values rely upon one another and specifically respect for the first amendment and the values it protects relies upon certain norms of communities. it doesn't just undermine or eviscerate them. and why is that? i think because in order for the first amendment to robustly protect speech on matters of public concern, we require a community that values first amendment values and is prepared to defend them even when the repressive urge is difficult to control. i think the chief justice understands this in the opinion he wrote. he for one thing he enacts it. it's very disciplined opinion. there is a while acknowledging the suffering that matthew snider's father endured, it's

none theless very disciplined and neutral and in an important sense about the speech that was at issue. and i also think it's worth focusing on the last paragraph of the opinion. the chief juss at this time justice wrote the following? speech is powerful. it can stir people to action, mover them to tears and as it did here inflict great pain. on the facts before us we cannot react to that pain. we have chosen a different coirs to protect even hurtful speech to ensure that we do not stisme public debate. now, i read this in part as a remind tore all of us f of us that the first amendment values at stake in this case rely upon a community that is prepared to vindicate them even when the desire not to do so may be at its greatest. >> quick comment. rir just have one response about this division between our private and public values. and this is a place where i

thought the chief just didn't answer justice alito. he says we don't have to choose between them. we can separate them. we can treat the public speech that was about public issues differently from the speech that was clearly directed at snider alone and contained a number of private slurs against a private individuals. why not separate them out and hold these guys libel at least for the purely private speech? i think there's an answer to that question. but roberts did not provide it. he didn't say why it was necessary to figure out generally what the speech was about rather than to parse it out separately. and i think it would have been a stronger opinion had he provided an answer to what was a sensible lawyer's point. >> you had a comment. >> i'm not a first amendment specialist and maybe for that reason by speech protective reflex isn't as strong as it seems to be. i'm unhappy with snider for a couple of reasons and i don't think either of them has to do

with emotionalism or repressive urge. one reason i'm unhappy is that the issue of distribution of the costs of free speech. so when people like lee bowlninger say this is the price we pay for a system of pree speech, it's not a price we pay. it's a price that albert snider pays or the snider family pays. the cost of maintaining the system of free speech are heavily concentrated on one or a few people in cases like this. and that distributive issue is a legitimate nonemotional ground for worrying about cases like snider, i believe. the second point is i think justice alito's dissents slightly miscast the objection. the objection isn't so much about targeting as it is about high jaking. that is, snider's position rightly understood is well you're welcomed to go speak on matters of public concern. but do you have to high jak my

son's funeral in order to do so? the church is west borrow baptist church is saying we're going to exploit you for publicity. and the attempt to stop that isn't an attempt to stop them from speaking on matters of public concern. it's an attempt to say you may speak on matters of public concern but you have to do so in a place or at a time and in a way that doesn't high jack someone else's private concerns. i don't think that is a repressive urge and an emotional ground. i think it's a legitimate argument that should have been more squarely addressed. >> mike you also had a comment. . .

in canada, and britain, and in most of europe, the westborough baptist church whatnot be facing civil liability, but criminal liability. i celebrate the fact we have not gone down that path, but i think we need to recognize that the --

this is really an american distinctive. i also wonder how principled these -- how far these principles of snyder will be pressed. the majority opinion depended upon a dichotomy which in theory does not exist in fact, and that dichotomy is that there are issues of public concern on one hand, and there are targeted attacks of individuals on the other hand. a great deal of very important speech is both. without cataloging all of the examples, the principal ones that we see have to do with harassment on the basis of sex, race, sexual orientation, and so forth. speech of this sort -- offensive, racist, misogynist,

it has ac speech -- deeply political character. it is about of issues of public concern no less than the speech here is, but it is, in fact, forbidden under public accommodation law and in a number of context. in the last few weeks, the federal government has come down on yell university under the title nine reckoned -- yell university under the title nine legislation for failing to take action against some sophomoric fraternity pranks which was offensive to female students. now, the supreme court in snyder goes to great lengths as to why the concept of offensiveness is so subjective, and subject to

the point-discriminatory application, that it is offensive -- i used the word offensive, i'm sorry. it is inappropriate, and unconstitutional to use offensive as a legal standard under the first amendment, yet that is the standard that is being applied under harassment law. it was a standard that was applied at the dow university, and that was in force with a great deal of ruthlessness on american campuses. i kind of wonder, how are we going to resolve this attention? are the rein in principles of schneider verses phelps going to crowd out the increasing efforts to protect people against offensive speech, where the offensiveness is based upon favored categories of race, sex, religion, sexual orientation, and so forth?

it is interesting that none of the opinions even recognizes that there is this huge domain of speech restriction based upon offensiveness that exists in this country. which principle is going to prevail? >> mike, i have not read the end of this brief. did any address this point. >> i have not read them. i am curious. it is profoundly important can you talk about some of the other first amendment cases? >> this is a first amendment term. there are a lot of them. one general remark, looking not just that this term, but the last several, free speech is alive and well in the supreme court. i would say that this is the most consistently and strongly free speech-protective court in

american history, and we see the court protecting the principles of freedom of speech, even in the face of very powerful concerns on the other side there at last turn, -- a lot -- side. the last term, animal cruelty, and the horrible speech in snyder v. phelps, and as i go into other cases as well, but i will begin with the one case this term in which the court did not protect something that was arguably freedom of speech, and that case is the nevada commission on ethics against kerrigan. again, this is the one exception. this is not typical of the term, but this had to do with refusal rules for the nevada legislature, which under these were accusal rules, a

legislature is not allowed to vote, or advocate in favor or opposed to legislation where he or she has a personal interest in the metal. the particular facts do not really matter. the particular facts are ones where does legislature's chief campaign mannes -- manager, and basically his chief supporter becomes the lobbyist, and is now representing a party who has an interest in this litigation. now, the court holds, in an opinion by justice scalia, joined by all but justice kennedy and justice alito, who holds debt the recusal statute is constitutional under the first amendment. the claim is that advocacy is first amendment protected, and

that the nevada statute violates freedom of speech. the court said no essentially because voting is not speech. the key point here is a legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal. so, it is really not speech. when a legislator votes, it is an exercise of power and governments authority delegated to that person on behalf of constituents. there is a certain amount of sense to that. that might be right, but justice kennedy and justice alito write some concurrences that i think are interesting, and maybe thought-provoking. both of them to point out how

close the idea of voting is to expression. justice alito says that if we held a straw poll, nobody would doubt that our testing of vote, and ordinary people casting a vote in a straw poll is the way that they express their opinion on a particular matter, so also with legislators. i cannot help with -- i am very interested in the application of constitutional history to constitutional cases, and i cannot help but note that the speech and debate clause of the united states constitution clearly applies to voting. now, in that speech or debate clause, and did our framers miss something that says boating is not a speech at all? it is also interesting that the phrase all called the freedom of speech" in the pre-independence,

british sense only meant that it was their right of parliamentarians to vote an advocate for particular measures in parliament. that is what freedom of speech was all about. it is interesting that the very thing that was the core of the freedom of speech under british constitutionalism is now not freedom of speech at all. and there is also a longstanding tradition of recusal rules, and it seems almost hitting contest -- inconceivable that properly drafted rescue so rules for a legislature are unconstitutional. justice alito and justice kennedy offer two ways of looking at it, with justice alito saying we should recognize it is speech, but these are proper restrictions on speech. we would then enter into a conversation about how narrowly

tailored the rules are. justice kennedy also concurs, but he says that this really presents an important "as applied" challenge, rather than a facial challenge, and he calls attention to the fact that the line drawing, which i think is troubling, about what matters to what a legislator has an interest in, are going to be very difficult. i was struck in our discussion of citizens united, with justice kennedy's statement in the earlier case that ingratiation and access are not corruption. ingratiation seems to be exactly the interest for what this nevada legislator was recused, because it is his campaign manager who now has a claim on his affections and loyalty.

that is what this is really about, and i think it is interesting that kennedy is being consistent in being worried about this in both context. >> i think before the next case we should talk about this lot aw. >> heather? >> what is interesting, is the kennedy, justice scalia dubai has gone up to protest votes. the rest of the court thinks of protest votes as silly. kennedy, the first amendment romantic, sees it. the rest of the court has not figured it out. controversies over disclosing who people who give money to initiatives -- there was a recent case surrounding signing a referendum. whether that was a public act

that could be disclosed, or like a vote, had to be kept private. on the way to the court now is a case involving proposition 8, where people who gave money to the same-sex question in california were confronted by gay rights advocates for what they did. some other stores have been boycotted. the real question is what are you doing when you are giving money to proposition 8? are you a legislator because it is your vote that is an exercise of power, or is it private and expressive? the court has not sorted out a consistent condition, but the argument keeps popping up in front of them, and they have never panned down precisely what they think of it. >> adrian? >> i think the big worry is that the majority's are inadvertently taking sides.

they do not recognize that we are doing so. let me read you two crucial sentences. the majority says the legislature cast the vote as the interest of its constituents. a voter's franchise is a personal right. you see why the majority has to say this. as voters vote, if they are trustees or something else, they would be subject to the same logic, and their vote would not count as protected speech either. that is a classic view in political theory, articulated most famously by john stuart mill, that a vote for a citizen is not like a piece of private property. it is a function that you exercise as a trustee for the rest of the citizen body, and justin's -- justice scalia assumes the whole line of that

argument in a way that i think would require a lot more work to sustain. >> neil siegel? >> this is a question for michael. you described quite well that a legislative vote is not speech. the court goes on to say that the legislature at issue does not have a right to vote, then it is permissible to ban the legislature from participating in the legislative session. now, certainly, speech during a session is speech, and it is not a vote. i guess, my question is, maybe that is right, i do not know who else is given the right to vote, but it did seem like the court rather quickly and seamlessly move from that conclusion to the next, and i am wondering if it is a lot more complex than the court made it out to be. >> i agree, that it is just one short paragraph that addresses the advocacy of the refusal will

carry -- refusal rule. i was not satisfied with the logic of this, that there are people who have the right to advocate on the floor without voting. for example, representatives of territories do not actually vote in congress, but they do have the ability to speak, and there also are numerous other arrangements in city council, for example, where there is often a time where citizens have the right to come and speak to the council and so forth. so, i am not really sure where the court comes off -- exactly what the real logic is of extending the refusal provision, even to advocacy. >> would you like to move on to other first amendment cases? >> so, the key to victory for the first amendment side in the nevada -- or the key to loss,

rather, in the nevada case is the court deciding this is not speech. the key to victory in all of these cases is once you get this court to see your action as being speech, then they are speech protected, and those instincts kicked in. this is even so in cases where it is at least a matter of legitimate dispute of whether what was at stake was speech. here, this is very interesting in this case. this is a case involving information that pharmacies get through government-mandated procedures when doctors said in prescriptions. so, if the information is kept, so the pharmacies know what kind of drugs individual doctors are prescribing. this information can be used for

health specialists to be studying issues of drug prescription, and for health economists to be considering such things such as the use of generic against the brand name drugs, and it can be used for a variety of purposes, but state law in several states forbids the pharmacist from selling disinformation to drug companies. the reason drug companies want this information is that they send their representatives to do what is called decaling, meeting with doctors to urge doctors to prescribe their particular drugs. if a drug company knows what kind of drugs that particular doctor is inclined to prescribe, it enables them to target this

marketing more effectively. it is exactly, i think, what goes on on the internet when the internet tracks your purchasing -- the purchase is that you make, and then you mysteriously -- ads start appearing on the web pages that are targeted directly to you. now, some people on the internet think this is a good thing. hi actually rather like it, because it means the advertising will be of use to me, but some people did not like it. if they think it is either an interference of their privacy, or for some other reason objectionable. so, this is effectively a non- internet version of the same thing. two courts of appeals split on this, and one court of appeal said that use of this doctor-

specific information is no more freedom of speech. this is just regulating a commodity. it is information been sold. the court said just like beef jerky. so, regulating it, is just a matter of regulating a business. the supreme court took the opposite view. it took the view that it is speech because this is information, and the purveying of information, even for sale, is a form of speech. it does not matter that there is a profit motive. in fact, a lot of information for sale is out of a profit motives. "the new york times" for example, gives us information every day, not out of the goodness of their heart, but they are in the profit-making business of selling newspapers, so our authors, and bookstores,

and a great deal of speech generated in the for-profit making purposes. so, once having define this as speech, the court, then, notes there is a discrimination against the law about which speakers and which subjects this information can be used for. it can be used by researchers for educational and scientific purposes, and public health purposes, and so forth. it cannot be used by drug companies for marketing, and the court says that this kind of speech your -- speaker discrimination and subject matter of discrimination with respect to speech is subject to heightened scrutiny. in this case, because it is commercial, the court says we do not have to decide whether it is through strict scrutiny, or intermediate scrutiny, but

either way the government has to establish they have a substantial interest in the regulation, and that is being served appropriately, narrowly tailored away. i think this is a rather aggressive free speech case, and it, again, it shows how important it is to get within that free speech box. it is interesting that to compare this case with the nevada ethics case, nevada ethics -- a legislature voting and advocating for legislation, that is not speech, but here, selling, and data-mining of government-related information generated as a result of government regulation, that is speech. that accounts for a difference in the two questions. one wonders whether there is not

some question here in the propensity of the court to determine what is and what is not speech. to throw an example from last term, the court found that a law school religious group's insistence that those who conduct their bible studies actually believe in the bible, that is to say believe in their own religious views. that was described by majority conduct, rather than speech, and therefore could be suppressed on the basis of regulation. it is merely unreasonable and not -- it is merely a reasonable, and not the point- discriminatory. defining -- as you pointed-disc -- viewpoint discriminatory. >> michael, i am curious to know what you think of this post-1937 era, which the general

assumption that courts, federal and state, and certainly federal, are not met to second- guess legislatures on social and economic issues? are the commercial speech cases, starting back in the 1970's, are they a way of an air raid in that supposition, displacing that -- narrating that supposition, disposition the notion that if you characterize it as speech, it becomes protected, and appropriate to judicial reviews? >> i think it is. especially justice brier has interesting dissent on this case, which hammers that home. he says this is a business, and just because it involves speech it does not make it any less of a business, and it ought to be treated as ordinary, commercial regulation, and he cites elliott against glickman, and an earlier case involving advertising of

food products, and in which the court did just treat this matter as one of the economic regulation. the way i look at it is that the economic, not economic, and is not really a line that the court is using. i think it has to do with which rights are actually protected by the text of the constitution, and which ones are not. much of the problem with the locker era was not what was being protected with the economic rights, as there are economic rights in the constitution, and they are protected, but there is no general economic freedoms protected, and no general rule of conduct, which was the -- at stake in the locker. instead, i think what the court has come to say with the exception of some of the more

controversial substantive due process cases, is that we are going to protect what is in the constitution, and not protect the stuff that is not really in the constitution. there is a line that supports this, as i think it is very response to justice -- to justice breyer -- i do not have in front of me, but the court says "the constitution does not embody herbert spencer's social -- >> social statics. >> right, the specs, a famous line -- aesthetics, right. a famous line. the first amendment protect speech. this is speech. that is what makes the difference. >> michael, there was another case on the docket.

is that another example of defining in and finding out? you have the court concern they might open the floodgates to court cases been seen as first amendment issues. that seems like an exception to the generalization. they seem to not want to bring that conduct within the scope of the first amendment. >> yes, and i think it is one of the most interesting cases of the term. this was a case brought under the petition clause, and there are precious few supreme court cases ever under the petition because. this is the case in which by all rights, everyone agrees that the plaintiff would have lost under the free-speech clause. the question is whether the petition clause provides a separate and independent

protection. this is a public employee. he is the chief of police, and he files various, first labor of -- grievances, and then some more political grievances against the city, and they fire him. the city council fires him as a result. under long-standing, although i think rather odd, and unpersuasive, but nonetheless long-standing supreme court doctrine, public employees cannot be fired in retaliation for their speech, but it is only protected if it is on a matter of public concern. you might also want to think about snyder against phelps in this category there is labor agreement, and it is a private concern, so it is not protected under the free-speech clause at all.

so, the chief of police does not go under the free-speech clause. instead, he sues under the petition clause, and the significant point on the petition clause is that we know historically that petitions were frequently, maybe even quintessentially on matters of public and private concern -- of course, you can consider petitions on public concern, but the best majority now to the framers of the first amendment were matters a private concern. if you have a problem with the government, hughes said in a petition asking for it to be dealt with -- you sent in a petition, asking for it to be dealt with. the first amendment has different protections. the free-speech clause is not the only thing there. there is the speech clause, the press clause, there is petition, assembly, and free

establishment related to religion. if you look at this -- purposes of the speech clause, it might be logical to give greater protection for matters of public concern, but if you are the get the petition clause, the petition clause does not have within it have any preference or greater importance for public rather than private, and if anything, it is the other way. the majority opinion written by justice kennedy essentially reduces the petition cost to the speech clause, applies the same distinction to the petition clause, and justice scalia wrote, i think, a fantastic dissent, my candidate for best descent of the term, where he takes the majority to task for failing to recognize that there are these different clauses to the first amendment, and each

stands on their own bottom. i said it is a descent, but it is actually a concurrence because justice scalia says that the key distinction, and the reason why the chief of police should lose this case, is that the key distinction is when you are petitioning to the government in a start and capacity, the petition clause applies, but when you are petitioning your employer, in the capacity of being your employer, that that is not a petition covered by the first amendment. so, it is not a distinction between public concern and private concern, but rather whether the employer is the recipient of the petition has acting in a governmental capacity, or an employment capacity. that strikes me as some much more consistent with the history and purposes of these clauses. justice thomas agree with that,

but i do not know why it did not attract more votes. why is this important? it is part of a trend over the last several years of collapsing all of the various parts of the first amendment into freedom of speech, and i think this is a serious mistake. again, last year in the christian legal society against martinez case, it is group brought a freedom of association claim, which is the modern way we used to speak of what the framers spoke of as assembly. they had a separate claim, that is we have the right to constitute our group, with our leaders being people who agree with our beliefs. that is essential to freedom of association, and we can not be penalized for that by being excluded from otherwise generally-available public benefits, like being able to meet in classrooms at a public law school, and the supreme court last year said essentially

that it would be anomalous to give the group greater rights under the freedom of association, than they would have been entitled to under freedom of speech. that is the entirety of the logic -- that it would be anonymous -- anomalous. i think on the contrary. is not all anomalistic say that the different provisions of the first amendment are protecting the different aspects of communication in slightly different ways. what is anomalous is for the courts to bomb them altogether, say we have based -- free-speech clause, and no other cause provides additional free-speech protections. we might be able to say the same thing of prass, because that has been essentially reduced his freedom of speech, petition is

now largely reduced to freedom of speech, and that seems to be an on warranted call. >> michael, thank you. you see, michael is right. it was a big first amendment term. time is running, and we want to be sure to give ample time to federalism. >> by my count, there were five cases this past term. i will not subjected to my exegesis on each of them syria out. instead, i will treat them illicitly and identify three questions i think are worth puzzling for over these pre- emption cases. the first question is why? why so many pre-emption cases, not just this term, but term after term in general? the second question is is the

are roberts scored fairly described as a pre-emption record? what are the cases from this term? third, if the roberts court is fairly characterize as a pro pre-emption court, is there anything to be concerned about from the federalist perspective? ok first, why are there so many pre-emption cases? what i'm willing to do is briefly summarize the subject matter of these cases. i think that will go a long way. bridging to illuminating why we have so many of them. -- two eliminating why we have so many of them. -- illuminating why we have so many of them. at&t mobility against conception, there, the question was whether the federal arbitration act pre-empted a rule of california contract law,

a self discovery bankroll, which deemed class-action waivers and arbitration agreements unenforceable and certain aspects are met. the federal vaccine law, and whether it pre-empted claims against vaccine manufacturers. williamson against mazda motors concerns federal safety standards, and whether the permitted state suits against auto manufacturers. finally, the case that came down on thursday, concerned federal drug regulation, specifically related to generic drug manufacturers, and whether they preempt, alleging a failure to warn. these five cases together, what did they tell us about why there are so many pre-emption cases? i think they tell us pre-emption cases are a sight of ongoing disagreement about multiple issues simultaneously. pre-emption cases, first and

foremost, our cases about federal state relations. people care a lot about this. pre-emption cases often involve disagreement over the proper scope of the government regulation of business. regardless of whether the roberts court is a pro-business court, people care a lot about the regulation of business, and dave -- when they care enough, they do the american thing, and make a federal case about things. they also involve conflicts about how social problems are addressed through agencies, a regulatory paradigm, or three judges, and common-la decision making. finally, i would add that they often arise when they have hot- button issues of the day, for example immigration reform. for all of these reasons we have a lot of pre-emption cases, and i do not think that is going to

change. i want to add an additional reason or a hypothesis, and that is because pre-emption cases are hard they are very hard, and why are they very hard, because the touch-tone is congressional intent. congress often does the rest of us know favors as we try to figure out what congress had in mind. do we look at the text and structure of the statute? do we look more broadly at statutory context, including history and broader congressional purposes? do we look at all of them, or only some of them? i think the fact that pre- emption cases are difficult because congressional intent is so hard to discern means that judges are going to have to make judgment calls that will be contested, there will be disagreement, and the court will be moved to intervene. guard are a lot of cases where

they simply make a judgment call on its own. how one goes about dividing congressional intent in my view is not easy to answer in the abstract and across the board. indeed, the same justices deal with the question of congressional intent disinflate in different cases. two of the most important pre- emption cases of the term to illustrate this nicely. waiting, the immigration case, the court held in part that this arizona law, which imposed licensing sanctions on employers who hired aliens, was not imposed under immigration law. state immigration law is upon those lamplight, recruit, or refer for a fee, and authorized aliens. chief justice rehnquist and the

size -- emphasized the preemptions spec sheet, specifically the reference to licensing similar laws. he argued that arizona had enacted a licensing statute. in dissent, justice -- justice breyer emphasized the broader context, and made arguments why congress could not have unwind but the court attributed to -- in mind what the court had attributed to it. it was a concern about protecting unauthorized workers from discrimination. that is a case where you have one side of the court arguing language and structure, and the other argument statutory context. contrast that with conception. that is a case in which the court held that the federal arbitration act pre-empts a rule of california contract law which

means waivers unenforceable one criteria for accountability were met, and there was preemption. the california will stood as an obstacle to the accomplishment and execution of the full purposes and objections of congress. you have the same split essentially as in whiting, with the exception that justice kagan is recused. he led justice roberts, and justice kennedy, and justice alito. you have justice sotomayor, justice kagan, and justice ginsburg in dissent. justice scalia emphasizes what he called the principal purpose of the faa, which he described as insuring the enforcement of arbitration agreements according to their term. he wrote the point is to allow

for efficient streamlined procedures tailored to the type of dispute, and the court's view class arbitration interfere with this one it was compelled by state law, and not consentual. by contrast, justice breyer is now emphasizing the plain language of the federal arbitration act, and specifically he argued that what california had gone fell directly in the scope of the act's exceptions, permitting the failure of enforcement. in other words, california was treating class arbitration waivers just like it treats other contractual provisions that are found to be unconscionable. so, but that picture that the very same justices in these important cases the final congressional intent in different ways suggests to me that defining congressional intent is quite difficult. that is the first question.

why so many cases? the second question is whether it is fair to characterize the roberts scored as a pro- preemption court. hear, one must be careful. if you just look and the numbers, the court is 3-2. the court found preemption in three cases, and did not in two. if that is as close to 50/50 as you can get in an odd number of cases. nonetheless, as good judges and lawyers know, not every case is worth the same amount as every other case. i think whiting is a case in which the court found no pre- emption, but i think conception is a very important decision in which the court found preemption, and the court did not mention the long-standing assumption against pre-emption, which as been around for many decades, and was designed as a protector of federalism values.

it should allow states and regulatory economy, the ability to accomplish things in a world of often pervasive federal regulations. i also think another pre-emption that decision, which split with justice roberts, and the majority, found preemption and change the law in significant ways to make it easier for defendants to make out a case of impossibility of pre- emption, specifically the court invoked the doctrine of prevention to hold the federal lot immunizes federal drug manufacturers because the court reasons generic manufacturers cannot unilaterally change the labels on their own, unlike the branding manufacturers, the generic manufacturers have to petition the fda to change their labels. hear, justice sotomayor writes a

vigorous dissent, saying we have never before made it so easy for a defendant to make up the case of an possibility preemption. if the majority, she pointed out, assumes that the drug manufacturer was on their obligation to petition the fda to change the label, if they were persuaded that the label did not provide adequate all morning, and was not complying with state law career she would have found that the very least the manufacturer was obliged. the court said -- found otherwise, and again did mention the presumption against pre-emption, and a significant development in the car ready -- plurality of the court, appearing to reject the presumption against pre-emption. this is a major development. four justices, justice kennedy, scalia, and a legal -- justice

alito did so under the origination of the the university of virginia law school, which left justice sotomayor to reaffirm the presumption against pre-emption, and reject the move. a more original understanding of the supremacy clause -- to a more original understanding of the supremacy clause. i think there is to extend that it is a pro-preemption court, but to some extent the jury is still out, just as justice thomas did not join the majority in all. the last question i want to talk about is why this matters. if this court as a pro- preemption court, is there cause for concern from a federal laws in perspective, and i think the answer is yes, as i am relying on the partnership with my

colleague and friend ed do the, ernie young, who has argued that if you care about federalism, you should care about preemption. if you look at cases together, there is very significant congressional power. i do not see that changing any time soon, but pre-emption cases happen all the time, and they are the ways in which federal laws and is worked out day-to- day and our constitutional system. the more preemption the court finds, there is less for states to do. if you care about state regulatory autonomy, and their ability to govern, it seems to me you ought to care about the roberts court as a pro- preemption corporate >> michael? >> i agree with most of that, but i think at the very end, not so much. i think it is a mistake to talk about federalism as if every

issue of division of power is driven by a single federalism principle. you are either for the state, or the federal government. what we have is a very complicated allocation of authority over different areas between state and federal .overnment as there should be no consistency -- there is no reason there should be no consistency because the constitution gives federal power over certain things, and not so much and others. looking at a pre-emption cases, three of them have to do with products liability for corporations that distribute products on a nationwide market. congress has set up a comprehensive regulatory scheme to evaluate fees and warnings, and so forth. would have thought that cases of this sort are at the heart of

the kinds of power that the framers did give tom gores -- that is that one of the key things -- congress -- that is that one of the key things was to create a common market in the united states so that goods and services in the national market could flow freely from one state in to the other, and not be balkanized by different concerns. so, to my mind, to be pro- preemption with respect to product liability, where there is federal liability -- scheme, makes a lot of sense. i am much less persuaded in a case like conception, where it seems to me that the question of enforceability of particular contracts between employers and employees is a traditionally state function. i am not saying that it is unconstitutional for congress to get into that, but there is no

obvious uniformity interests, no obvious need or common-market concern. i would say that if we are interested in a more textured idea of federalism, there should be less of a presumption in favor of pre-emption there, then the others. i just do not like the idea that we should treat preemption and federalism as one-size-fits all. i think there are different categories of these things. i think waiting falls in another area of overwhelming federal interests. immigration is something debt as a national concern. i think that case is probably rightly decided, but only because congress itself said that the states may use licensing laws to achieve their

own local regulatory purposes, not because of any kind of presumption in favor of states, or against a preemption. >> yes. i think i agree with much of what michael is saying in general, though i think i disagree with some of the specifics. i think you are exactly right that it is not just about whether you are for or against the states. i think you need a new was the understanding of what kind of problems are for the federal government, and what kind of problems are for the state, connecticut think that constitutional federalism, statutory federalism overlap in that way. where i disagree with the specifics, is in the way where you characterize the fda regulations in some of the short liability cases as a comprehensive federal scheme. if it is comprehensive in the relative sense, then the federal government has already been debated here, and there's not much left for the states to do,

and i do not think that reflects reality. i think everybody knows, including the fda, that the fda does not have the resources and personnel to monitor brand-name and generic drug manufacturers -- the fda relies on these manufacturers to bring it to the fda put the attention it's their labels are not up to speed, and, in fact, the court assumed in this decision that the generic manufacturers were under a state law obligation to petition the fda to change their labels. the court said that this gary locke gives them a federal obligation, and -- under this very law, it gives them a federal obligation. i think my disagreement with the details is just on how comprehensive the federal scheme is a here, and i think the presumption, and not just a presumptive against pre-emption in general, is it. -- presented against states

that have long-regulated. the federal government has not regulated as comprehensively, at least as i understand your comments to suggest. >> we are almost out of time, but i hate to wrap things up without something setup the walmart case. have there? >> walmart was a gigantic class- action involving 1.5 million plaintiffs. when had a claim that said in essence that walmart's policy of giving great deal of discretion to lower level managers to have a highly incentivized way of promoting pay were highly discriminatory. women -- to glenn beck at think there are key pieces of the opinion. -- to win in. i think there are two key pieces of the opinion.

for those of you way back in the days of rule 23, under rule 23, b2, in order to bring a class- action, you typically bring the claim. imagine housing segregation. everyone in the class will be effected by the same order. the plaintiffs in this case brought their claim under rule 23, b2, even though they were seeking individualize back pay awards. they said in essence the did not predominate over the common claim, and the court unanimously held that this is inappropriate, and that goes back pay claims or more appropriately brought under 23 b3. the more interesting part of the case i think is the employment discrimination fees. this is where the cord divided.

justice scalia said in essence there was no common claim among the plaintiffs for discrimination, but it was not enough to simply say there is a common policy of giving lower level managers discretion, and that therefore denied the claims of all of the plaintiffs. justice ginsburg, on the other hand, said that was sufficient to satisfy the wrote, now the requirements -- the commonality requirement. what is really moving the justices of the accord are to the will completely different pictures of what discrimination is. justice scalia prescribes to the more conventional account, which intentional actors deliberately discriminated against women, therefore, not surprisingly, he cannot imagine that 1.5 million women are sharing the same claim, because imagined there are better and worse actors, some people that do not discriminate at all, and some that discriminate quite a bit, so hot. these claims? justice ginsburg says the

description -- possibly unites these claims. justice ginsburg says it is that they are less likely to see women as successful managers, so she finds it very easy to imagines that this constituted discrimination that would affect all women, and cites the study of orchestras, where it turns out where -- when orchestras began to use blind tryouts, the number of women in orchestras increased dramatically. why was that? it is not just the one in which the people choosing before sought we do not like women, and we're not going to choose them, but the study suggests that people used to think that men were better musicians appeared when they heard a man play, they thought his music was better, and when you blinded them to the gender, you therefore increase the number of women. that is what justice ginsburg

thinks is the lennon, and i will say one quick thing by way of conclusion -- the social science does back justice ginsburg. there is evidence that we all have these precaution to biopsies. before we think about what we are when you do, we have these ways of classifying people, and they do not help women in the workplace. if you think about this in the way of what courts would do, you might ask yourself our courts well suited to dealing with structural inequalities rather than bad actors? our courts well-suited was dealing with questions of precaution to decisions that affect everyone, where is it possible that the court can only lead us so far, no losses, as the majority might suggest, -- and the lawsuits, as the majority might suggest, might not be the way to address inequality going for. >> thank you, heather. there are more cases that we could talk about, but i think

you would agree that it is better to do a thorough coverage of a few cases. i'm sure if time permits, a few of a question or two for the panelists, they might win there long enough. not included questions and answers, but i apologize for that. you have been a wonderful audience. thank you for being with us this morning, and chief, can i turned back over to you? [applause] [captions copyright national cable satellite corp. 2011] [captioning performed by national captioning institute] >> we are not the conclusion of the program. i just have a few thank yous to make. things have gone smoothly. i think we all the staff a round of applause -- we all the staff around of applause. [applause] >> things happened smoothly, typically when you consider the number of people here.

it involves a lot of work, and we are appreciative of what they have done. judge king, all of the folks from west virginia, thank you for planning a great program. it was well-received. jay wilkinson, i declare this the best we have had. when not conclude the conference there have a safe trip home to read -- conference we have ever had. have a safe trip home. thank you. [applause] >> law professors gathered in west virginia today, listening earlier to a conversation with chief justice john roberts, and talking on this panel about the influences of chief justices of the supreme court at the businesses and free speech cases

that top this 2011 term. the chief justice said earlier that he is concerned about the fact that television cameras could have his they were allowed into the court. the associated press remarks on the conservative majority today into the will of the far- reaching rulings which made it harder to achieve class-action lawsuits. the recent walmart case that blocked a sex discrimination suit on behalf of 1.6 million female employees, and another case with at&t against conception, which dealt with contracts where employees waive their right to sue. the supreme court finishes its business on monday, when the justices will announce decisions in four remaining cases, including a suit by video-game makers challenging a california law that bars the sale or rental of violent video games to children, and a second case involving a campaign finance law in arizona that gives candidates extra money is to have exact the expected public funds are being outspent

by private groups. also, monday, the justices will decide on whether or not to hear several cases for next term, including police warrants, indecency on television, and suits against defense contractors over abuse claims that of a grand prince it -- prison in -- abu dhabi prison and arrive. . .

>> cr span has launched an easy to campaign trail. bioinformation on the candidates, twitter feeds andbook updates and links to c-span media partners. visit us at c-span.org/campaign

2012. this is the first time that the f.d.a. has changed the labels in 25 years and this announcement runs about 25 minutes. >> good afternoon, ladies and gentlemen. thanks for being here. i have with me today two special guests on my left the secretary of the department of health and human services. on my right the commissioner of food and drugs. the top official at the food and drug administration. they are going to talk to you this afternoon at the top of the briefing about a new ruling on labels for cigarettes and

tobacco products. what i would like to do as we have done in the past is have them make a few remarks at the top. take questions from you. so that and we can all questions we have we can do at the top. i will excuse them after 10 or 15 minutes and we can start again and take your questions on other matters. >> today we are taking steps to reduce the death and disease of tobacco use. new graphic labels that will go on advertisements for tobacco products. tobacco use is the foremost preventable cause of death in america and costs the u.s. economy about 200 billion annually in medical costs and lost productivity. every day, approximately 4,000 american kids between the ages

of 12 and 18 try their first cigarettes. 1,000 of those children become daily smokers. for years, we watched in this country as tobacco rates fell. in 1965, over 42% of americans smoked. by 2004 it had fallen to just under 21%. and that's good news. but despite the well-known risks, youth and adult smoking rates that had been dropping for decades stalled. so when president obama took office, we decided that these numbers weren't changing and our action had to change. and we are committed to taking steps that will help prevent children from smoking. o over the last two years we have gone to work making it harder for tobacco companies to market to kids. we have restricted companies from using terms like light and mild on products and in marketing. we're supporting local programs to help people quit smoking and to stop children and adults

from starting. and as part of last year's health care law we gave americans better access to counseling to help them quit smoking before they get sick. so today we are announcing a measure that will forever change the look and message of cigarette packs and ads. the new graphic warning labels will be the toughest and most effective tobacco health warnings in this country's history and they tell the truth. it will replace the old warning phrase with pictures showing negative health consequences of smoking that have proven to be effective. dr. hamburg will go into more details but with these warnings every person who picks up a pack of cigarettes is going to know exactly what risk they're taking. over the last two years, we have made giant strides in our fight against tobacco and our efforts are paying off. so i am here today with a renewed sense of hope and momentum that we can make tobacco death and disease a part of our past. and not a continuous part of

our future. so i would like now to turn over the podium to our talented and dedicated f.d.a. commissioner dr. peggy hamburg. >> thank you very much, madam secretary. first, let me say how proud i am of the part that f.d.a. has played in this comprehensive ambitious initiative chan ynd by secretary seebluss and president obama. we share a vision for a healthier nation free of the dangerous consequences of tobacco. the sad truth is that tobacco is the leading cause of premature preventable death in the united states as secretary sebluss said, an enormous source of avoidable disease and disability. the public health consequences are enormous. with an estimated 443,000 americans dying each year, most of whom began smoking before the age of 18. combating this national tragedy must be at the forefront of our

public health goal and that is why congress and the president were committed when they enacted the family smoking prevention and tobacco control act. since then, f.d.a. has worked hard to implement that vision. we have taken important steps such as banning the sales of fruit and candy flarde cigarettes which are especially appealing to children and youth and for the first time requiring tobacco companies to tell us exactly what ingredients are actually in their products. last november, the f.d.a. unveiled the 36 images that would be considered for inclusion on every cigarette pack in the country for graphic health warning labels and today we are publishing the nine selected. these graphic warnings labels represent the first major change to cigarette labels in 25 years. the final nine images were selected based on a number of important criteria. we took into account public

comment from across 1700 stakeholders including experts and industry, some of overwhelm whom submitted scientific research studies. we also conducted a national study of our own to gauge people's response. actually the largest study ever conducted involving some 18,000 participants. we examined how effective the proposed warnings were at communicating the health risks as well as the warnings in terms of its ability to encourage smokers to quit and to discourage nonsmokers from ever wanting to smoke. consider this. a pack a day smoker will see these labels more than 7,000 times a year. and kids who are under the impression that smoking is cool or glamorous will be confronted by a very different reality when they're tempted to take out the cigarette pack 15 months from now.

these powerful images coupled with the valuable cessation source 1-800-quit-now will be on every label to go a long way to the time where we can and will make tobacco related death and disease part of america's past not its future thank you so very much. >> secretary seebluss, as it relates to the pictures they are very graphic that we have seen. do you think that the public will become desensitized at some point and you'll have to step up the photos? you're not feeling the initial thrust that they felt? >> well, the law contemplates sort of the users getting used to them, if you will, and gives f.d.a. not only the authority but the direction to change them on an ongoing basis.

so immediately after the launch of the first set of nine we'll begin the studies to make sure that we are keeping people sensitized and we have the authority then to move to a new set of labels. so we see this as a continuous. you are absolutely right. any time you have a frozen image what may seem quite shocking at the beginning, people get used to fairly quickly. >> will they be more graphic in nature or along the same lines? >> i'm looking to peggy if i give out incorrect information. but i think we will continue to test to see if they're making a difference. one of the things that was done with this 18,000 person survey was really look at different quadrants of population, which of the ads that really hit kids. what appeals to or distresses pregnant women? what men respond to

differently. so we are trying to be very market sensitive and i think that surveying will go on, on a regular basis. >> [inaudible] to cam pain this effort? >> well, we did engage the industry as we were developing the selection for these nine graphic health warning labels. they were part of our public comment period and of course we've had meetings with them. this will be a dramatic change in what a cigarette package looks like. no doubt about it. these warning labels are very graphic. they're large. actually, the law even specifies that they take up 50% of the cigarette package, front and back, with color pictures of printed health warning statement and also the 1-800-quit now line. so it will change the consumer

response to a package of cigarettes. but, frankly, that's what we want. that's what we're striving for. and that's what will make a difference for health. >> back to what you said earlier that at one point that cigarette use was going down and then it stalled. why did it stall? >> well, i think we didn't have the law that is now in place that president obama encouraged to be passed and then signed, which was tobacco regulation law. so we've been able to really ramp up efforts since then. and i think we hadn't made any progress with changes as labels. it had been 25 years since we had changed labels. a lot of the aggressive work that was done early on had become common place. so we really weren't doing much at all to focus on what is now killing about 443,000 americans every year prematurely. the number one cause of

preventable death. and certainly for kids, although some states have gotten aggressive, i think at the federal level there wasn't a national focus on this. and i think what the president made clear and we are certainly very much engaged in is this is now a new national renewed national focus on smoking cessation and one that we think can pay off in dwivedends in lives and in health care costs and we know it can because it's been successful in other parts of the world. >> which of these images specific nine images do you think will target teenagers especially teen aged girls who seem to be so attracted to smoking picking tup habit? >> well, i think that some of the powerful images certainly are a reminder of the health risks. some of the images like the one with the sort of mouth with the rotting dirty teeth and ulcerating lesions on the lips are also reminders that smoking

causes disfigurement and i think that those are very powerful messages for potential teen smokers. and we do hope that each time they take up that cigarette package they will deepen their understanding that there are really serious consequences. >> campaign that would try to deter them from picking up the package to begin with? >> well, of course these images will also be part of print advertisements for cigarettes. but when we think about having a real ongoing sustained impact on public health and really bringing those smoking levels down, this is a very, very important activity but it has to be part of a broader comprehensive set of public health activities and secretary seebluss has been of course spear heading a national task tobacco controlled strategy that look at how different components of government working with partners at the state and local level and with partners in other sectors can

work together to make a difference for public health. >> i think there are a couple of things also, somebody said when they first saw the warnings, these are really gross. and they are. we want kids to understand smoking is gross not cool. and there's really nothing pretty about having mouth cancer or making a baby sick if you smoke. so some of these are very driven to dispelling the notion that somehow this is cool and makes you cool. the other thing is we've done a very ramped up effort already on the second tier advertising. so it was not ok for cigarette companies to directly advertise to kids. but they were using lots of techniques about logos at concerts, appealing to younger generations with cool mottos,

developing products clearly for a teen audience not an adult audience. and those are now also being banned. so we're not just looking at the pack but all sorts of strategies to try to keep cigarettes away from our children. [inaudible] question for you on a different topic. the absence of nationwide data about the lbgd community have been a problem. government assistance to [inaudible] it's public knowledge that advocating with hfs to address the question specific like including questions on the national health interview survey and the behavior risk factors. you have been advocate for decision makeup. what's the holdup? >> it's a great question and we fully intend to collect lgbt data. the problem is it's never been

collected and what our focus came back to us with is we have to figure out and we're working with providers and advocates right now to market test the questions. kind of ask questions in a way that they get accurate responses because collecting data that doesn't give an accurate picture is not very helpful in the first place. and there has been so little attempt either directly to consumers or parents or anybody else to ask questions about lgbt health issues that he don't eve know how to ask them. it is a commitment. we will be adding questions to the health surveys and we are asking at developing a slew of questions market testing them and make sure we have the right way to solicit the information that we need. >> on the cigarettes, if any other product any other category killed 443,000 people a year, i can't imagine it being allowed to remain on the

market. do you see a day when cigarette smoking would ever be illegal? you know, i think that's up to the lawmakers to decide. this is clearly, as you know, if you looked at the history of passing the tobacco control act was a tort russ task. it took a number of years and number of fits and starts. there are people who have been working on this for 20 years. so to say that this step was not a major hurdle to go over underplays i think the efforts of the past and i can we will continue to collect the data and look at the information. i think the more people understand the health risks hopefully we will be in a situation where not smoking will be the by far not only preferable norm but there will be a lot of consumer pressure, which there already is. people are now insisting that they don't want to live in

housing projects where there are smokers. they don't want to be in open spaces knowing a lot more about second hand smoke. it's not just the smoker affected. so there is a growing awareness and tobacco is unique. >> former surgeon general forestall a smokeless united states and that's never going to happen. is it? >> i really can't tell you. i think we're making some great strides. i think the lawmakers have to take a look at the datand take a look at what they are willing to the. if you had ever told me that more than half the states in the country would have passed smoke-free laws and that a majority of cities have passed them, that we would be taking these kinds of steps against advertising and rebranding our cigarette packs, i would have said that's probably not going to happen any time soon. but i think people are bedtiming very aware of the unique power of nicotine, the addictive quality, and also the

fact that as you say in 200 billion a year in health costs that we clearly could spend better elsewhere and the loss of 443,000 lives a year. that's a huge toll to take on a country. >> one more. >> thank you, madam secretary and dr. hamburger, i wanted to segway over to the proposed warnings and retooling of the recipes in cereals and deserts that have come out that have been written primarily by dr. hamburger's office as well as federal trade commission and the center for disease controls. many in the food industry say this is a case of change the recipe or else. and do you see it that way? and will these eventually be enforced? these are the restrictions of course on cereal and other things.

>> well, i'll let peggy also comment on this because dr. hamburg's office has a particular set of these issues. there is a lot of effort under way in the area of nutrition and certainly aimed at the obesity epidemic that is affecting one out of every three children and adults in this country. so whether it's the let's move initiative which is doing a lot of work voluntarily to get companies to begin to look at both sodium and sugar content and transfat or conversations going on in the industry itself to look at reformatting their product or wall mart who is now saying that as a major purchaser they only want suppliers who meet certain standards or the cdc which is

looking at sodium and the f.d.a. which is convening conversations around nutrition qualities, reformatting of the new food place that was announced by the department of agriculture, getting rid of the pyramid and looking at what healthy eating is, i think this is some space that is going to continue to have a robust conversation because, again, it has a lot to do with underlying health costs and overall health of our nation. peggy can talk a little bit about the f.d.a.'s involvement in this area. >> what you're referring to is a request actually from congress several years ago i think to the ftc to look at issues of food advertising to children, knowing that of course how we eat, what we eat does really matter for health. the fdc put together a working group that included the f.d.a.

and other components of government to look at some of the issues and voluntary recommendations to industry have been put forward for further discussion. and it's important discussion to have because we need to work with industry to be able to provide consumers, parents and children, all of us, with the best possible information about nutrition and health so that we can all make good choices in terms of promoting and protecting health. >> this is a case of make these changes or else? >> these are voluntary recommendations. and we work closely in many dome yains with the grocery mfers of america and other strind representatives because how food is formulated, whether it's sodium, sugar, fats, really does matter for issues like obesity and heart disease

and diabetes and other things. the food industry recognizes that there are ways that they can improve and make more attractive the food products that they are developing. we certainly have a vested interest in that as a public health agency and we want to work with them on that. [inaudible] kind of regulations say the next step is to put pictures, graphic pictures of the clogged arteries on really bad foods. is that the direction you would go in a perfect world? >> well, again, i think tobacco is unique. it is a product that is the number one cause of preventable death. we know that there are strategies that can be very effective because they have been in place. we also know that we have installed in this country. so i think that this effort about tobacco regulations,

efforts around tobacco cessation has been decades old and is something that is a unique situation. having said that, i do think that there are going to be ongoing discussions as you look at the underlying health care costs where we spend 75 cents of every health care dollar treating chronic disease. what are the areas, if you want to lower health costs and have a healthier country, that you can focus on. certainly tobacco and obesity become two of the major underlying causes. so the work around obesity and healthier, more nutritious eating, more exercise will need to be i think an ongoing focus. >> the graphic images on our food in the future? >> just lots of celery stalks and broccoli. >> thank you. i appreciate it. thank you all. >> today, book tv and american tv history look at the history

and literary life of savannah, georgia, with book tv events on c-span 2 including flannery oh conner, a conversation with dortsy kingry, central character in john barren's midnight in the garden of good and evil. also, a tour of urban slavery sites. and on american history tv on history 3, travel to the founding days of savannah as we visit the site of worm flow plantation and explore. c-span in savannah georgia today on c-span 2 and 3. >> blackberry users, now you can access our programming any time with the c-span radio ap with four audio streams of our programming, public affairs, nonfiction book and american history all commercial free. you can also listen to our interview programs each week all available around the clock

wherever you are. download it free. >> federal communications chairman announced monday that the s.e.c. would consider rules to protect telephone customers from charges known as cramming. the charges are placed on bills by the phone carrier. the chairman told an audience that the center for american progress today that he is releasing a consumer tip sheet. only one in 20 consumers noticed these charges on their phone bills. this is about 30 minutes.

>> good morning, everyone. we are delighted to have here for the second time the chairman of the federal communications commission. this morning's discussion is about empowering and protecting consumers and it's an important one. as families across america are struggling to buy groceries, save for the future, and even make ends meet. last month the bureau reported that real average wages had fallen over last year at this time while consumer prices

continue to rise. the cpi rose again last month. although the economic recovery is slowly perhaps gaining traction, rising costs and stagnant wages diminish the purchasing power making it all the more important for average american families that they have the tools to avoid unnecessary costs. today, chairman jan cows can i will discuss what the fcc is doing about cramming when there are confusing charges. as the busy mother of two girls i can tell you that we have very little time to go over our monthly phone bills to double check every charge and even less time to call and complain act try to get a charge recommendied if it doesn't belong there. and if this is hard for us, and both my husband and i have a consumer protection background, imagine what it is like for most american families who face this and perhaps even fewers resources to deal with them. the fcc under the chairman's leadership has taken steps to

protect and empower consumers. the chairman's consumer empower draws on technology to give consumers the information they need literally right at their fingertips to make smart choices. the chairman was here back in october to announce rules to provide consumers with simple and easy to understand tools to prevent phone bill shock. and that's when you have a dramatic increase in your payments usually often because of mobile phones. and today he is going to talk about steps that the fcc is going to be taking to protect consumers. we are very pleased to welcome the chairman back here. and while i think in many cases he needs no sproducks, let me give you a quit background. the chairman was a law clerk for justice suiter and brennan and at the u.s. court of appeals for chief judge. he also served as chief counsel

to former fcc chairman. he was an executive and a entrepreneur in the technology industry working to start accelerate and invest in early and mid-stage technology in other companies. from 1997 to 2005 he was a senior executive at iac corporation. his career is also rich in social enterprise. he was a member of the founding group for something called the new resource bank which specializes in serving the needs of green entrepreneurs and sustainable businesses and served on the advisory board of environmental entrepreneurs. as an adviser to his harvard law school friend, the chairman urged then senator obama to harness the power of the internet, introducing strategies that will change the way presidential campaigns are run forever. since his appointment in 2009, chairman jan cawskiss has focused on protecting the consumer.

by helping them to become aware of their rights as consumers and providing them with the tools to protect themselves against unfair practices the fcc aims to help american families keep their hard earned money by becoming savier consumers. chairman deserves our thanks for his ongoing efforts to make a positive and long lasting effect impact and i look forward to learning today about the steps that they are now taking on the question of cramming. please join me in welcoming chairman. >> thank you very much. happy father's day to everyone here. nice new tie. i've got mine. i am pleased to be back. as sarah mentioned i was here last october to announce the launch of a major new effort to crack down on bill shock, bill shock is when mobile

subscribers see their bills jump unexpectedly by lots of money, ten, hundreds or even thousands of dollars from one month to the next. i said then that our bill shock efforts were part of our consumer empowerment agenda which is focused on harnessic technology and transparency to empower consumers with the information they need to make smart decisions and make the market work. the day after that announcement the commission voted to move forward toward an automatic alert system that allows consumers to avoid surprise overage charges. that process is on track and i expect we will have a practical solution in place in the not too distant future. later that same month, the commission took strong action to deter mystery fees. as you might guess, these are fees that mistearsly can appear on consumers' phone bills that are usually unauthorized by the customer. the fcc investigated reports

that verizon wireless had charged 15 million customers i comb proper fees. at the conclusion, verizon wireless agreed to repay to consumers more than $50 million in overcharges and to make a $25 million payment to the u.s. treasury, the largest settlement in fcc history. now, the fcc is taking important steps in our effort to crack down on cramming charges and other mystery fees. we have proposed high fines for companies that have taken millions of dollars from consumers through unauthorized fees. we are taking new steps to educate consumers about cramming and tomorrow i will circulate to my colleagues on the commission an item that will empower consumers to better protect themselves from cramming. these are important next steps to protect consumers from hidden fees that can cost them money. that can take valuable time to

resolve and that can undermine the public's confidence in communication services. cramming is a term of art in our space. what is it? it's the illegal placement of an unauthorized fee on a consumer's monthly phone bill. the cramming party, the crammer can be the customer's phone provider or an unaffiliated third party. the improper charges can be for voice mail or long distance service that the consumer didn't request, it can also be for completely unrelated items. we have seen people getting unauthorized charges for yoga classes, cosmetics, diet products, and yes, psychic hot line membership. these improper charges typically range from $1.99 to

$19.99 per month. it may be small for any specific unauthorized charge but it can add up to real money when so many americans are trying to get by and struggling in this tough economy. these mystery fees are often buried in bills that can run 20 pages. and they are often labeled with hard-to-decipher descriptions. we looked at one last week that was an unauthorized long distance charge. what appeared on the consumer's bill was usbi. not surprisingly, these charges can go undetected for months or more and sometimes they're never detected. in fact, according to a survey done by the federal trade commission, only one in 20 cramming victims ever noticed the charges. as a result, consumers too often get bilked out of

hundreds of dollars or more. it is simply unacceptable and we must do whatever we can to protect consumers from getting nickled and dimed from these unfair practices. inn can be a victim of cramming of these mistears unauthorized charges. we estimate that this problem may affect up to 20 million americans a year. people like a st. louis, missouri woman who was charged for 25 months of long distance service she never autsdzryf rised or used. when she protested the charges, the company sent her a copy of the form that she had supposedly used to authorize the service. the form had a different name, different address, different e-mail address, and different birth date than she did. even sow, so, the long distance company offered to credit back

only a fraction of the cost. cramming is not only illegal, it erodse consumer trust in communication services. that makes it both unfair to consumers who are getting ripped off and unfair also to most communications companies that do the right thing every day. the fcc will not tolerate cramming and mystery fees will not tolerate unauthorized charges on phone bills and we are turning up the heat on companies that rip off consumers with unauthorized fees. at the end of last week, the commission acting on our enforcement bureau's inl vest congregation and recommendations, proposed 11.7 million in fines against four companies that appear to have engaged in widespread cramming. the enforcement bureau found that each of these companies was charging thousands of consumers for a type of long

distance service they never ordered or used with each company billing consumers roughly 13 to $15 at a time. this resulted in the apparent overcharging of consumers to the tune of about $8 million. this commission action was bipartisan, it was unanimous, we all at the commission want to send a clear message. if you charge consumers unauthorized fees you will be discovered and you will be punished. we also want to communicate to consumers that they should be vigilant in protecting themselves from cramming. the statistic that i mentioned before, only 1 out of 20 consumers notice that tells us that something is wrong. consumers can play a part in addressing that. consumers should review their bills every month. i know we don't have the time but it's worth the money. review your bills and if you see potential unauthorized

charges or discrepancies, report that to your phone company. now, they said earlier it can be hard to spot improper charnls on your bill. that is why we are issuing a consumer tip sheet on cramming be available today at fcc.gov that lays out a series of questions you can ask yourself that will help you spop improper charges on your bills. questions like do i recognize the names of all the companies listed on the bill? are there charges for calls that i didn't place or products or services i didn't authorize? are the rates i am being charged consistent with what i signed up for? we encourage consumers who think that something is wrong on their bill to contact the companies that are billing them or the third parties that are putting on charges and request adjustments to their bill. if you need help resolving your

dispute, contact us. contact the fcc at fcc.gov. you can call 1888 call fcc. consumer complaints served as the foundation for last week's enforcement actions. they play a very important role in protecting and empowering consumers. as do events like this, that get the word out that if you rip off consumers you will get caught and you will get punished. i'm also announcing that tomorrow i will be circulating a proposal to my colleagues on the commission to explore new ways to empower consumers and protect against cramming. as i mentioned the commission is united in believing that companies that put unauthorized charges on bills must be punished and i believe we will be united in crafting sensible

rules that empower consumers with the ability to make the market work. the steps that we will propose will increase transparency and smart disclosure, steps that are part of our larger effort at the fcc, one that we're taking across the board. i believe that technology driven transparency, technology driven smart transparency is critical to empowering consumers to make informed choices in the communications market place. now, i am pleased that other parties are looking into this issue of cramming including the senate commerce committee, the federal trade commission, and a number of states in particular i welcome chairman rock if he willer's call for a hearing on this issue. i look forward to working with all of these parties to crack down on this illegal practice. our work on cramming, bill shock, mystery fees and other issues like this are all part of our larger consumer

empowerment agenda which focuses on empowerment education and enforcement. consumer empowerment and protection are among the commission's highest priorities along with promoting competition, innovation, and job creation. and these go hand in hand. once again, the strong staff of the fcc has done great work. on behalf of all consumers i thank our enforcement bureau and our consumer and governmental affairs bureau. we have here today michelle who is the chief of our enforcement billers, the deputy chief, and joe who is our chief of our consumer and governmental affairs bureau will be joining me up here in a minute. today we are saying loud and clear to consumers trying to navigate the complex and constantly changing communications landscape the fcc is on your side.

we are focused on helping all americans seize the tremendous opportunities of communications technology. thank you very much. and i am happy to take some questions. why don't i invite joel and sarah and -- [inaudible] >> terrific. >> and thank you very much. i think your colleagues are going to join you. so these are questions some of them have come from members, if you can pick that up that would be great and i'm going to start with is there a way that i can block companies from putting charges on my phone bill? >> well, that's a good question. so you if you don't sign up for something, there shouldn't be anything on your phone bill. so the question is, is there an opt-in mechanism so that

nothing ever appears on your phone bill without prior consent? and joel why don't you tell them. >> sure. well, i can tell you that what we hear from consumers is that very often when they call a company and notice that they've been subject to a cramming charge that company, their land line provider will offer to block third party charges if they want it. so i think this is something that you can explore with your carrier. but most carriers do have the technical ability to block third party charges at your request. >> great. these are two related questions. the first is what should you do if you think you've been crammed and how do you file a complaint and what happens to the complaint? >> if you think you've been crammed, and again i advise people to look at their bills every month and we have the same experience, we're busy, we have kids, we also care about consumer protection and empowerment and there's no substitute for looking at your

bills and seeing if there's something there that is su spishes. if you find something there that's suspicious or you're sure was unauthorized start by calling the company. you can call either if it's a third party charge that company the phone number should be on bill or call your phone company. in many cases, that will resolve it similar who fo what happens in many cases. if that doesn't work, call the fcc. we have a complaint center set up and we will take appropriate action either something that we will look into investigate. as i mentioned the four multimillion dollar fines that we issued last week started with consumer complaints coming in through the fcc. in some cases if the complaint concerned something that is not within the fcc's jurisdiction we will refer it to the agency

that has jurisdiction. >> the one thing i would add is one of the thing that is the fcc does that many people are not aware of and that is one of the real things we're proud of as an agency is we will not only listen to your complaint, we will act. we have dozens of people who handle calls and are very skilled at helping to get a dialogue going between you and your land line or your phone carrier if you are having trouble getting satisfaction from them. and we urge people to take advantage of that service is one of the things we provide. >> i want to add a word of thanks for the employees at the fcc who do this. we have a terrific staff of people who operate our call centers, take calls. we have a mixture of people who have been doing it and they have seen patterns and it can help them act efficiently. we also have newer people coming through. but we're proud of the team that we have and they do

excellent work. >> great. well, you mentioned yoga fees. that may be for the class i sign up for but never go. so that one is probably on me. but there's charges as a third party that's telling your phone company that you have bought a service when you haven't purchase ds it. but if you could explain some of these charges are placed by the phone companies and some are placed by other vendors. how does that work? >> the answer is both. the first thing is if i get a yoga charge i know it's unauthorized so that's an easy example. and you really set up the answer in your questions. some charges that are improper charges are charges that your phone carrier itself might put on unauthorized mystery fees. if it's unauthorized, call us. some of the charges of concern in this topic today can comb from third parties.

there can be at least a couple of dird third parties. the third parties might be long distance companies, voice mail companies, companies that are within the fcc's jurisdiction and the four companies that we issued notices on last week are in that category. some of the companies, and a yoga company, would be in that category. wouldn't be in our jurisdiction. we would refer that to the federal trade commission which would look at cramming complaints that come from third parties that are outside the fcc's area. between us and the federal trade commission, we look at making sure that we have the landscape covered, we have a joint fcc, ftc task force on consumer issues to make sure that between the agencies we are protecting and empowering consumers it's an important part of what joel does

coordinating with the counterpart to make sure that we are spotting issues, that nothing is falling through the cracks, and that when there are new issues that arise we work with the senate and the house committees of jurisdiction to adjust way that is the relevant statutes that can be updated amended to clarify. >> i know if i get a charge on my credit card, typically they don't make me pay it. while it's being investigated it can be held in dispute. are there similar procedures for phone companies? >> there's nothing formal with credit cards there's a formal $50 limit on what you can be held libel for. there's nothing like that. and we have seen a variety of practices. there are cases where consumers complain and they are made whole fairly quickly. there are other case that is have come to our attention that are out of investigation that the enforcement bureau did where people have had charges

month after month that added up to more than $400 and they would have to come to us or go to the state public utility commission to get satisfaction. so there's a large wide variety of practices. but of course we think that consumers who have been subject to cramming and these unauthorized charges should be able to get full redress. >> you said you're circulating an item to empower consumers to your colleagues. is this 2 new rule making? >> yes. i'm glad. item is another term of art that we use. but yes this would be a proposal sent to the other commissioners to look at ways that we can improve disclosure and transparency on phone bills to help consumers do what we're asking them to do, which is to look through the phone bills and see if there are any unauthorized charges. one of the complaints we hear is that even when they look through a bill the unauthorized charge can be hidden. so we're going to be looking at

that together at the commission so that we can empower consumers and make it difficult if not impossible for unscrupulous companies to get away with what they try to do. >> all right. i've got a couple more here that are a little bit longer questions. i'm trying to read them before i read them to you. is cramming also happening on internet or cable billing or does this only apply to your phone bill? >> well, we have seen the record that we have so far shows significant problems around telephone service. and that's what we're focusing on because we want to focus where there is a problem and where we know government action is appropriate to tackle it. we are monitoring the other areas. we certainly encourage consumers to let us know if there are complaints. you know, inn who is thinking of cramming in other services

should be aware that if we see evidence of a problem we will attack it. >> this one says are listed services a type of cramming? listed services is charge for a second listing in a directory, say to put your spouse's name also in. this person says my charges from 2006 to 2007 range from $1.89 to $3.15. >> i don't remember us coming across that particular one as a type of cramming but i think our advice would be the same. if you see a charge on your bill that you don't think you authorized and that you don't understand, if there is a phone number for the third party call them. otherwise, call your carrier. if neither one works, please call us. >> this is another question about if you have the capacity to anticipate put yourself in the mindset of the crammer for a second. those who are seeking to try to

in this case find willing people who they can. is there an effort made to target these practices to particular consumers or does it seem to be a blanket practice? were we're not aware of any particular targeting but there is something about the way crammers operate that i think is important to understand. technically, to place a cram charge on your bill all they need is a telephone number. and when the chairman mentioned before one of the cases that our enforcement bureau found where a woman asked to see the supposed authorization form and it had a different name date of birth address and e-mail, other than that it was probably accurate, but that's not a unique situation at all. now, of course the companies are supposed to get your autsdz ization, they're supposed to have a clear record. we have another case where the company told the woman that she had authorized the charge on line and her response was i don't own a computer. so they technically can do this simply by having your phone number. and i think that's a very

important thing to realize because it shows just how open consumers are to this kind of illegal activity. >> also why this process of fining companies when a fine is justified and appropriate is important, because the companies need to understand that we're trying to catch them. and if we catch them, they're going to pay very large fines measured in the millions of dollars. we are not going to let it be a good business to rip off consumers. >> let me, i have a couple questions here that are related. there are multiple agencies in the federal government that have jurisdiction over consumer practices. the new consumer financial protection was only on financial practices. the ftc has some authority, you have some authority. what is being done to create a seamless web of regulation and enforcement between the

agencies? >> >> working together in an appropriate coordinated way. and so the task force that we have set up with the federal trade commission is important to us. we with the justice department have very practices where if something rises to a criminal violation we will refer it and in the last two years there has been criminal enforcement actions that casme out of our referrals. so there are historical reasons why different improper conduct that has some similarities are handled by different agencies. congress at some point may or may not look at this but the point is for us today we jointly have an obligation to coordinate, to cooperate, and to make sure that it's seamless from the perspective of consumers. >> well, i think that's the

last of the questions i want to give you a chance to say anything closing remarks to our audience? >> other than thank you very much. we regard this as very important, one because empowering and protecting consumers is the heart of our mission at the fcc. and also, because we see every day the tremendous benefits that communications technology and service ks bring to consumers, particularly in these economic times. there's no sector that can contribute and is contributing more to economic growth and job creation. a lot of that turns on consumers having confidence in communications services. it's one of the biggest barriers we see to adoption of new communications services. so it's one of the reasons that we make this a priority. both because consumer protection and empoweringment is a priority but also because we see a straight libe between getting this right and job creation and economic growth.

thank you, everyone. >> thank you. [applause] >> who would think a you tube rap video on comics would become popular? >> ♪ ♪ here we are peats out great recession.

forhe president's nominee ambassador to egypt said the first priority is ensuring free and fair elections followed by focusing on stabilizing the economy. and paterson previously served as u.s. ambassador to pakistan. she is joined at the hearing by ambassadorial nominees. this is about one hour and 10 minutes. >> think you for being here. when i am not here, senator lugar will continue the hearing.

i hope to get back as soon as i can. we're here this morning to consider the ambassadorial nominations to five important countries. we're going to divide the hearing in to two panels. we will begin with anne patterson, the president's choice to represent the united states in egypt. egypt has historically been the region's most important incubator of ideas. now is of the forefront of the new arab awakening. help egypt manages its transition from dictatorship to democracy and how it restructures its economy will affect not only the country's 80 million citizens, but it is also going to affect millions of others throughout the region. i have said a number of times in

public that the fact that egypt represents 1/4 of the world's arab population and that it is not as torn apart by sectarian divisions as some other countries in the region, and has always had a very strong civic society, it has always been a place where even under the mubarak regime, there was a current of civic engagement and discussion. all of those things contribute significantly to the possibilities for egypt's contributions as we go forward. its importance to regional strategic issues, particularly to the peace process with israel and palestine, cannot be

understated. it is very important that this process go forward as effectively as possible. patterson is one of our nation's finest public servants. i have had the privilege of working closely with her when she served as ambassador to pakistan. there were many late-night meetings with various hot issues on the table. i watched her professional approach to those challenges on many different occasions. i am greatly encouraged the president has nominated somebody of her caliber for the critical assignment of ambassador to egypt at this obviously critical moment. egypt does face significant challenges as it tries to build a new political order. i was there about a month and a half ago now.

i held a town meeting. i was struck by the diversity of the people who came to the town meeting. there were young women in anditional covered guaarb some in more modern dress. there were men in traditional garb and in modern suits. some had beards and some did not. they have different backgrounds but all had a common sense of the possibilities of this moment in the future. they're all wanting to express their citizenship and be able to enjoy their rights and freedom. this is an exciting moment, but also a challenging one. i think there was 2% occupancy in the hotel we were in. i think that was true of most every hotel in the city. there has been an enormous retrenchment with respect to the

main sources of revenue and currency in the country. there is little time to organize political parties before elections. those elections need to be fair and carefully monitored. we could see a return to tahrir square anyway unless there is positive progress. the lack of a fair and accountable election would because for century ducks -- such a recux. the egyptian government needs to be more responsive to the people. 30's to the stability between muslims and christians and in the approach to israel. 40% of the egyptians live below the poverty line. the revolution has dealt a serious short-term blow to the economy and other sectors

besides tourism. one person mentioned to me how many business people have simply not returned or have left. , for fear of retribution. that affects the flow of capital. food and oil prices are up. foreign investors have yet to sense the confidence necessary to come back and invest. the government has significantly depleted the reserves of hard currency. the egyptian economy appears to be stabilizing. prudent policies and in return to higher gdp growth is possible in the near term and in the next year or two. the policies put in place need

to benefit all egyptians. as egypt changes, our approach to aid must change also. promoting economic recovery is not enough. international assistance also needs to address the socio- economic divisions, expand the political space, and promote transparency, legitimacy, and accountability. to that end, the obama administration has provided funds to spur economic growth and assist with political transition. i have introduced legislation with others that will promote entrepreneurship and job creation by channeling investment directly to the private sector. i have also been working with senator mccain and others to develop a creative public- private partnership that will encourage u.s. corporations and others to invest in egypt. this weekend, senator mccain and i will travel to egypt with the

ceo of ge and a group of other chief executives. we will meet with the egyptians in an effort to further develop this initiative. i appreciate embassador patterson's help that has been significant leading up to this initiative. the sooner we can get her on the ground to help implement, the better. we need to be realistic. consolidating the tips democratic advances in addressing its economic woes is probably going to take a generation or so. a recent poll found nearly 90% of egyptians think their country is heading in the right direction. during my visit in march, the spirit of ordinary egyptians that i met in tahrir square and other places was contagious. i hope the spirit can compel them through what may be

turbulent and difficult times ahead. ambassador paterson, i would like to raise one last issue with you before i recognize senator lugar. nearly two years ago, a massachusetts constituent of mine, who believe is that this hearing, had his sons conducted from the united states, from massachusetts, to egypt. they were abducted by their mother. that is even though he had legal custody. our courts had ruled. there were conducted with false visas and passports. they entered egypt under false pretences. he has not been able to see his children. besides a couple of visitations,

he has not seen them. i have raised this at any number of levels with the egyptians. it is no small fact that the last conversation i had with president mubarak was a relatively lengthy conversation. it was almost exclusively on this topic. i raised with him the legalities, in humanity, and fairness -- unfairness, that a father would be separated from his children and not be able to be part of their lives. i think all of us can understand the frustrations that colin and others are feeling. my hope is you will do what you can when you get there to emphasize the importance of this. in a new egypt, hopefully the attitudes that allowed colin to be stiffed time and again and be

maltreated and those kids to be deprived of a father can hopefully achieve a higher order of priority. this morning, we also welcome the second panel nominees. i do not mean to diminish the importance of any of their countries and the time we have spent on egypt. each of them are going to be representing areas that are of enormous consequence to the united states where we have critical relationships. michael corbin has been appointed to the united arab emirates. some of those relationships will have an impact on egypt and some on our strategic presence in the region. another has been appointed to kuwait, another player in our specific interests in the region. susan ziadeh is been appointed

to catarrh. qatar. we hope to have positive things to announce with respect to the country and situation soon. finally, kenneth fairfax has been nominated to serve as ambassador to kazakhstan. they're all extremely qualified nominees. we congratulate you and welcome you here today. senator lugar? >> permission to yield to senator corker? >> absolutely. >> i am here out of total respect for the nominee and to thank her for her commitment to public service. i do not know of a foreign service person that i respect more than the nominee for this position. i welcome her and look forward

to her doing great work in egypt as he has in many other countries. with that, i am going to do something else. >> mr. chairman, i join you in welcoming ambassador paterson and our panel of distinguished nominees. americans were moved by the power and speed of the tunisian revolution and by the resolve of the egyptians to change the course of their history. we celebrated the calls for greater political participation, the protection of basic human rights, and a more inclusive economy. we were heartened that protests internees and egypt had such an impact in many parts of the middle east. at the same time, it is clear that the size of improvements in governance and in the middle east will not be simple or automatic. the past few months have demonstrated that the countries of the region are all on very different paths and time lines. we should not overgeneralize about what is occurring in new

eastern societies or expect changing attitudes to be solved. we should recognize there are genuine opportunities in the long run for the advancement of democratic values and the broadening of prosperity. those are accompanied by short- term risks and dangerous uncertainties. we are witnessing civil war in libya and ongoing suppression of popular upheaval in syria. in yemen, we have seen a highly fractured society that appears to lack national institutions or a common identity around which to coalesce. in bahrain, we have seen sectarian tensions and violence against peaceful protester. the challenge for our nominees is to protect and advance american interests in the midst of the rapidly changing and the first landscape. it is essential that we redouble our efforts to engage in the

middle east. we must be created in using the full scope of american power and influence to support a more peaceful future for the region. this is important to our own fundamental national security, the global economy, and the security of our close ally, israel. recognizing the diversity of the region does not mean shying away from promoting real reform and more inclusive government even if that prospect looks different in egypt than in the united arab emirates for example. we have been encouraging more representative and tolerant governance throughout the region for years. as americans, we should honor those speaking out in defense of the values that we hold dear. i believe a key part of the process must be the encouragement of more transparent and inclusive economies that are more securely tied to the global market we

need to build more meaningful trade and investment relationships in the region. our nominees should deleverage the leadership of american universities, cultural institutions, and civil society to generate deeper and more sustainable linkages. the protests started in tunisia. it seems clear the test of the process will be in egypt. we have shared interests with the people of egypt to build a more secure and prosperous future. this will not be a short process. i believe america is expecting different relationships with this and future egyptian governments. we respect what was born in tahrir square. we want to see it flourish into a partnership that goes beyond the top levels of our government. it is vital the transition not be hijacked by extremist groups that would undermine the fundamental civil liberties at the heart of the revolution.

those could threaten the united states and allied interests in the region. during this moment turmoil, the desire for more inclusive government must not be manipulated by those seeking to exploit attention from their own failures, including the regime in iran and syria. i appreciate the commitment of our nominees and their willingness to take on these difficult assignments for our country. we welcome you again, ambassador patterson, and ask for your testimony at this point. >> thank you very much. thank you for the honor of appearing before you today. i wish to thank the president for nominating me as ambassador to egypt and the competency and the secretary have shown in me. with your permission, could i introduce my family? >> that would be very nice.

>> my husband, david, is retired from the foreign service. our stepdaughter is on her way to afghanistan. my son andrew is about to be commissioned in the marines. our other two children are not here today. if confirmed, i look forward to leading professionals to serve in cairo. serving with dedicated people over the years often under difficult circumstances has been the highlight of my career. should i be confirmed, i am under no illusions about the responsibility and challenges of serving as ambassador to egypt which is now the epicenter of enormous and promising changes in the arab world. people everywhere were inspired by events in tahrir square and the citizens' desire for freedom and democracy. we should remember that transitions to democracy are difficult and long. there will be surprises along the way.

the egyptians will find their own path. when thinking about egypt, and we should be heartened by what is taking place in latin america and eastern europe over the last 40 years. what america -- latin america's path has hardly been street. it now has a degree of economic prosperity unimaginable 40 years ago. the arab world will be no different. if confirmed, i will be firmly committed to backing the democratic transition which will reinforce much-needed respect for human rights with all the support the united states government can muster. let me outline the strategies the administration has developed and if confirmed, i will pursue in cairo. the first priority will be to encourage and support an election process that is free and fair. polling suggests many egyptians will have the first opportunity in their lifetimes to vote in a

free election. enthusiasm is understandably high. as we do and hundreds of other countries, the u.s. will support non-governmental and civil society organizations who wish to enhance their organizational skills and play a more prominent role in public life. these groups are always essential ingredients in a successful political system. the democratic process should lead to increasing respect for human rights. newly empowered citizens will demand it. we welcome the commitment of the interim government to repeal the emergency law. we are concerned about arbitrary arrests, non-transparent prose, and attacks on religious groups. -- non-transparent trials, and attacks on religious groups. attacks on women have taken place. we have called authorities to prosecute those who committed them. the need for a job was just as strong a motivator for the demonstrators as the desire for

freedom and justice. egypt has to generate over 750,000 jobs a year to adorn the young people into the labor force. these young people are often not well-prepared with skills needed for a modern economy, yet they have high expectations. the international republican institute has come out with a pull that it indicates egyptians overwhelmingly believe there will be better off economically next year. the economic trends are heading in the other direction. most egyptians are barely making ends meet. the military leadership has played a key role in stabilizing the situation, but the economy has suffered from the unrest. tourism has declined. investors are sitting on the sidelines. expectations for the new government will be unrealistically high. a key part of our strategy will be to strengthen the private

sector so that it can generate jobs and broaden the benefits of economic growth. increased economic engagement will offer opportunities for american businesses to invest in and exports to egypt. all americans should be proud of what u.s. assistance has achieved in egypt over the past 30 years. we're now refocusing our assistance on projects directly linked with private sector growth and sustainable jobs. as the president said on may 19, we're leading the effort in the international community to provide short-term stabilization for the egyptian economy. egypt is discussing a program with the imf, world bank, and other international lenders to provide short-term resources that the japanese. we are seeking legislation that will allow us to forgive $1 billion of egyptian debt and ask egypt to invest the local currency equivalent. the overseas private investment

corporation is working to expand lending to small and medium businesses. you both of introduced legislation to authorize the bill to spur private sector growth. our third priority is to ensure that each place is strong and positive role in the region. as one of only two arab states to sign a peace treaty with israel, egypt has been a powerful ally for a two-state solution and comprehensive middle east peace agreement. egypt has been a valuable partner in fighting terrorism, and integrating iraq into the region, and providing assistance to libya. egyptian officials have said they will abide by the peace treaty with israel. we take these commitments seriously. the vast majority of egyptians have no interest in regional conflict and want to move forward on their own democratic path. our close defense cooperation

serves u.s. interest and promote regional security. let me say that democracies can ctious.e loud and bunche egypt will be no different. we will hear voices that and not to our liking. the process will be difficult because of the newness and fragility of the democratic institutions. if confirmed, i will do everything i can to support the aspirations of the egyptian people during transition. incredible transition matters to the u.s. and our allies. it will serve as a model for the rest of the arab world. let me say i am particularly grateful for the critical role that members of this committee played in my last post. if confirmed, i know members of this committee will play a similar role in the months ahead in egypt. thank you very much. i look forward to questions. >> thank you very much. we will have a round of seven

minutes for each senator. i will commence questioning. i want to comment on how much admiration i have for you in your last assignment and in your remarkable career on behalf of our country. we appreciate the members of your family being here. they likewise exemplified the service to your country that is part of your family. on june 19, the "washington post" talked about a problem that has been often discussed in role committee as to what wil the united states should play in the transition in egypt. it has been suggested that perhaps the election now scheduled for september should be delayed. this is a point of contention in

egypt apart from our advice. the dilemma comes down to the fact that is taking a while for those trying to put together a political parties. this would include the students in tahrir square and other people in egypt. it is the fear that the muslim brotherhood that is better organized than most other political movements might have a dominant role in that election with results that would not exemplify the best in terms of egyptian democracy for our relations with the country -- or our relations with the country. in the past few days, there was the story of a young egyptian in tahrir square. he was one of those attempting to rally for democracy. he had gone out into the countryside to try to sign of people for a petition that apparently requires 5000

signatures. he had gotten up to 1000 but is finding it was difficult going. the citizens wanted to talk about their lack of food and employment. they were involved in the jobs issue and not political transition or the formation of a political party. it was almost a form part of the conversation. what is your general comment? if confirmed, you will be there during much of this formative time prior to september. this is going to become more hot and heavy discussion either in terms of the late or how you formulate competitors so that a free and fair election really makes some difference.

>> thank you for the kind words about me and my family. let me first address what we're doing to advance this process. i am heartened by some of the groups like the national democratic institute and the international republican institute and the influence they have had. their job is precisely what you have suggested. it is to try and teach nascent politicians with little experience how to do basic and holdke organize, the dates, and the polling. we have invested quite a few resources, close to $40 million in these organizations over the

past few weeks. they are active on the ground in egypt and have been well received. we have tried to support smaller organizations. through our partnership initiative, we have given out 35 grants to small, a civil society organizations. many of them are in rural areas and doing just which you say -- what you say, trying to connect grievances with political desires. we're not alone. other members of the international community are doing the same. with the fragility of institutions, it will be a long hard slog. the issue of the timing of elections has been controversial in egypt. i think there are voices on many sides of the issue. we will do our best in whatever time remains before the election to promote this democratic transition through our

organizations, to the extent that the egyptians are willing to engage with us. >> we have had some difficulties with economic assistance. some in the egyptian government had protested that the united states is interfering in some of sovereignty is being compromised by this. but the same time, around usaid headquarters, there are long lines of people trying to avail themselves of programs they have heard about. what is your reading as you prepare for this assignment of howl our aid is being accepted customer to what extent we be able to monitor on behalf of the taxpayers of the united states who always fear the money that goes to uncooperative

governments were corrupt governments and officials will disappear even as we are attempting to do good? >> on the money to promote democracy which is about $65 million and the money to promote economic growth, there has been a large outpouring from the public. something like 600 organizations came to the information sessions how to apply for the grants. there is a lot of interest in egyptian civil society. by no means is this an affront to egyptian sovereignty. we do these programs in hundreds of countries in the world. they're almost always well received by the government's as support for their own

institutions. the monitoring of small grants is always problematic i have already looked into this issue with the middle east partnership initiative. i think they have a good auditing program on the ground. regarding our larger aid program, there is an office of the inspector general in cairo. they have long established controls and rigorous procedures in effect. rest assured this will be a very high priority for me to be sure that our money is used for the best value for the taxpayer. >> that is important reassurance. from the like to recognize senator casey. >> ambassador patterson, it is great to see you. i want to thank you for taking on yet another difficult

assignment. i cannot say enough about your extraordinary work in pakistan along with your other postings over many years. i thought when you appeared before us for your next assignment, it would be kind of one.n easy but you have taken on another difficult one. we're glad because you are effective and a great patriot. we are eternally grateful for that. i want to thank your family as well. we often know that families help the public official or ambassador. this is an extraordinary commitment by a family. in this case come individually they are doing their own public service of one kind or another. -- in this case, individually

they are doing their own public service of one kind or another. we will issue in islamabad and other places in the country, but we will look forward to seeing you in egypt. i want to ask about the recent approach of what i would argue is a more confrontational approach now to israel. whether it is the opening of the border crossing, the hamas/fatah unity government, and finally the question of the gas lines to israel. when you think about those three examples, i wanted to get your sense of that in terms of the

purchase of -- of the approach itself and also with the red lines are as it relates to how egypt will approach its relationship with israel. it is an issue not just israelis are concerned about but that we are as well. >> egypt is the bedrock of our regional policy. it has been at peace with israel for many years. the current government has committed to abiding by all international agreements with israel. we take those commitments seriously. we do not think it is in egypt's interest to promote confrontation with israel in any way.

on the border crossing, that is for people and limited humanitarian goods. there are security incidents there. smuggling is a considerable concern to us. we know the israeli and egyptian security authorities have been working together on this and have been in close contact. the egyptians with israeli permission have put additional military forces into the sinai to address these issues. there has been increased law and order issues out there. we understand the police are beginning to return now. hamas/fatah issue, they were anxious to come to some sort of arrangement with

fatah. we're not opposed to reconciliation. we are concerned that promote regional peace and the two-state solution. our understanding is reconciliation has slowed ident abbas ist b concerned that the assistance for the west bank and support given will continue. finally the gas lines to israel, we know this has been a concern. the gas is starting to flow again. the pipeline has been attacked twice in recent months because of the lack of law and order. it has started to flow again. there are some pricing issues that will be addressed between the vendor and purchaser. these are issues of concern to us. nothing is more important to the united states then regional

peace and egypt's peace with israel. we will do everything we can to pursue that. again the government has reiterated respect for the peace agreements. we know on many of these issues that the israelis and egyptians are talking directly. >> thank you. i want to ask you about some of the economic relief and promises made. egyptian officials emphasized the need for that kind of relief. our president announced $1 billion in debt relief and $1 billion in u.s.-backed loan guarantees. there have been calls for conditioning that kind of assistance. if there is a commitment to some

of conditioning not aid -- back eight or taking their actions into consideration -- if there is a commitment to some kind of condition for the aid, how do you approach that? >> on the debt relief, we will be presenting legislation to the hill that will build on previous legislation for some of the debt relief. one of our goals in the region is to find a worthy recipient for the local currency the will be generated by the funds and one that is transformational and addresses some of egypt's underlying problems. the secretary feels strongly we should have a transformational project.

the draft legislation that builds on some of the previous legislation does have the standard issues in the legislation about democracy, various human-rights observations. we would expect them to abide by the provisions of the imf agreement. most aid agreements contain quite specific conditions on health reform or education reform better not too onerous, but we expect the aid to promote the reform process. if confirmed, i would expect to continue that tradition and enhance it. >> thank you very much. >> let me join in welcoming and

thinking -- thanking you for your service in your continuing willingness to help our country. this is an important position, as my colleagues appointed out. we all wish you well representing the united states in this transitional country in the part of the world where there is great hope for democracy. we have found that the desire for human-rights and democracy is universal. the united states is looked upon as a facilitator to bring that about. your role will be very important in that regard. egypt obviously is the critically important country to u.s. strategic interests. their role in regards to the middle east is that they are important to moving forward with israel. one of the key point is whether

they will continue to honor the agreements reached with israel. they are very important in our campaign against extremists. here is the dilemma we face. some believe we have to be bolder in our development assistance in egypt. the main trigger for the revolution was basically economic. people were being denied basic economic growth and wanted to do better for their families. that will require more attention by the international community to make significant profits -- progress in egypt's economic growth. others believe we have to make sure there is accountability on u.s. aid. i have fallen to both camps. i think we have to be bolder and we have to have accountability. we have a responsibility to make sure aid is used for its intended purpose. there is a requirement that the aid goes to nations that support

our bicycles -- our basic goals of peace with israel and provide basic human rights to citizens. there have been disturbing trends in egypt. we're not clear as to whether hamas is getting a stronger footing in the country. we do not know whether efforts are being made to fund extremists through egypt. we are not clear of the trafficking of weapons that may end up being used to attack israel. we look to you as our eyes and ears in egypt to be able to give us the best advice as we have to sort through these issues. i like to get your general view of how you see your role in advising us as to how we can move forward with the strategic

partnership with egypt using the tools at our disposal to make that more of a reality. >> i would expect and look forward to interaction with members of this committee if confirmed as ambassador to egypt. i would also look forward on the ground where you could see for yourself how we are progressing on these issues. i look forward to working with members of the community and keeping you advised. i think the dilemma you have laid out is a real one. it is one we're going to have to struggle with over the next few months. on the stabilization and whether we have been bold enough, i think we have tried to take a leadership role in the

international community and encourage burden-sharing for other members and organizations where they can come forward with short-term resources egypt needs. bulge ofthis youthfu kids, soaring food prices, declining tourism. these are all going to be difficult issues to maneuver over the coming months. the imf is working with the government. the world bank is prepared to lend considerable funds. the european economic -- bank for economic reconstruction and development and some allies in the gulf are also prepared to provide short-term stabilization funds. i think that will begin to stabilize in a few months. from our standpoint, we are going to focus on democracy,

governance, and private sector growth. that is where the future is in egypt. there is this youth bulge that could turn into a demographic dividend. we will do everything possible to monitor this aid and be sure ly used.eful use we share your concern about hamas and others. there is no evidence that hamas has a closer relationship with the egyptians. they have facilitated the reconciliation with the top -- fatah. we're going to hold egypt to its commitments about peace with israel. those commitments are in egypt's interest. there seems to be no

inclination in the current government to do anything to undermine the commitments they have made. >> let me underscore one. with regards to the normalization of the coalition should of the -- of the relationship between israel and egypt. it was troubling to see the government condemning anti- semitic activities in the schools with textbooks we brought that to the attention of the egyptian government frequently. i would hope we have learned a lesson. if there is going to be lasting stability in the region, democracy, human rights, and understanding need to be part of that. we should have expectations that the egyptians will facilitate rather than fuel discriminatory tight views -- discriminatory views. >> the issue of textbooks is an issue in many islamic countries.

it was an issue of my previous post. it is one we work on. it is below the radar little in many countries. i was interested to read some of the conditions of our assistance program in egypt. one of them is to transform the textbooks into something more broadly acceptable. the anti-semitism seems to have increased recently. they have taken the lid off of this in egypt. it is critically important. that is where it building democratic institutions is so critically important, so that people have a voice. i am thrilled to welcome ambassador patterson. i have had conversations with

you before about your service in islamabad and was impressed with your understanding of nearly a quarter decades of service to our country. you have amassed a remarkable background in many challenging posts. i would like to join other members of the committee in thanking your family and you for your willingness to serve the country in the past and future. my predecessor chose to highlight your service to our nation by recognizing you as a great federal employee on the senate floor. that is something he did with great effect and enthusiasm. i have come to share his admiration for you and your service. i would like to start by focusing on the recent experience in islamabad and your understanding of the difficulties of the rough-and- tumble of a relatively new democracy. you mentioned that you are sure

we will hear many voices that are not to our liking and that the democratic process will be difficult because of the newness and fragility. i will associate myself with the concerns about the security of the border, the relationship with israel, relationship with hamas, the bombing of the gas pipeline, and security. israel is one of my principal concerns as well. the senator referenced the history of incitement and challenges. i appreciate your saying it is a primary consideration for you. as someone charged with overseeing the first round of assistance to pakistan, you saw how difficult an uneven the process of oversight has been. i would be interested in your views on whether we should

condition assistance to egypt. effective the most in encouraging growth? should we look at a multi-year engagement? how do we retain confidence in the commitments of the egyptian government as it evolves? we wanted to stay on course in recognizing israel's right to self-defense and existence. the brief and focused question, i know. >> on conditioning assistance, in pakistan that was certainly a huge issue with the assistance there. there are already conditions in

the foreign assistance act across a broad range. my own view is that conditions are sometimes useful to focus the attention of the host government of what they need to do. it is important for government officials to meet with you to reiterate this. i do not think we can do about the taxpayers' money willy- nilly without demanding certain conditions, not the least of which is of the money be used for the purpose for which it was appropriated. on private sector growth, we will have to refocus all lot of our aid program to promote this. we should be very proud of what the aid has achieved. we have less money than we used to in egypt. to begin to focus is on

something that builds up the private sector, we have a little program on entrepreneurship. it engages young people and promotes angel investing. we need to do more of that over the next few years. we need to encourage trade with the u.s. and trade facilitation. on retaining confidence in the camp david accords and peace with israel, the government so far -- our military assistance has certainly enhance regional stability. we have a multi-year program for the military assistance. generally speaking, i think it would be good to have multi-year programs for civilian assistance as well. it gives more certainty and steadiness to our planning and

disbursement. we will have to say what the newly elected government does. i do not have a better answer than that. we will have to see how this evolves with an elected government. there is no evidence that the egyptian government officials or leading politicians do not seek peace with israel in their interest. many of them want to get on with their own democratic and economic path. i think to be elected, the politicians will have to focus on the burning economic issues. in tahrir square, we saw no anti-americanism or anti-is reali statements. it was all about egypt. >> they have received a lot of

sudanese refugees. egypt is one of the fastest- growing economies in the region. how can we encourage a constructive role for egypt to play in the future in sudan? >> that is an accurate characterization. we will have to engage with them on all levels. one of the reasons we're having the outreach programs with the nascent political parties is to engage on political party formation but also to discuss the issues of the day. that would include issues like saddam, regional engagement, -- sudan, regional engagement, economic reform. we will be talking these issues up over the next few months.

>> thank you. i think all the senators on this panel have done a brilliant job of outlining your remarkable career. i would like to thank you for your remarkable service to our country and a bank or family members. each of them are serving or have served at key places around the world. we also appreciate their service. you hit on one of the things that is so prevalent throughout the middle east, the issue of jobs. there is a young population and a need to create significant jobs. you highlighted 750,000 jobs a year in your testimony. that is a big feeat to be able

to do that. we feel the lack of jobs creates a fertile ground for violence, terrorism, and things like that. my question goes to what you have touched on a bit in terms of how we're using our money. i understand recently that secretary clinton has done reprogramming in terms of the funds available for egypt. she is moving funds from one category to the other. i was wondering if you could outline for us where we have taken money away from, why we're doing that, and what areas we are targeting. i know you mentioned angel investors and other programs. i think would be helpful for the committee to have an idea of the

best places to invest with the scarce resources we have. you have said in a general way it is important to invest in good governance and also the development of the private sector. >> job creation and the youth bulge issues are rather frightening, but they can have a huge upside. pakistan had to generate 2 million jobs a year for new entrants to the labor force. in latin america, this became a huge demographic benefit. there were all these people in the labor force to have fewer children and did not have to support the elderly. there was a huge impetus for