>> tonight, anthony kennedy talks about preserving the u.s. constitution followed by the history of the presidential appointment process. anthony kennedy talks about protecting and preserving the u.s. constitution. from the heritage foundation, this is about an hour. [applause] >> thank you, ladies and gentlemen. it is great for me to be able to join john in welcoming new year

to this lecture. this is the fifth annual occasion on which we have had this lecture. the heritage foundation vision is to build an america where freedom, opportunity, prosperity, and civil society flourished. to help achieve this vision, the center launched the preserve the constitution series, which is an annual lecture series to inform and -- inform citizens on topics related to this constitution. the series promotes the protection of individual liberties, property rights, free enterprise, constitutional limits on government. we've been able to feature some of the nation's most respected judges, legal scholars, lawyers, and policy analysts. the marquee event is tonight's program. the namesake of tonight's lecturer became the youngest

associate justice ever to serve on united states supreme court when he was appointed by president madison in 1812. he made a significant mark on american law in his 33 years on the bench, but his greatest contribution is is renowned commentaries on the constitution. justice story a famously and correctly declared "a constitutional government is addressed to the common sense of the people and never was designed for trials of logical skills or visionary speculation." this lecture series celebrates his legacy in the law. prior lectures have been judge robert bork, professor john harrison, judge raymond randolph, and chief justice of

the united states court of appeals of the sixth circuit. tonight, we're honored to add a fifth name to that prestigious list as a welcome justice anthony kennedy. justice kennedy received his bachelor of arts degree from stanford university and the london school of economics and his law degree from harvard law school. prior to this public service, the justice served in private practice in san francisco and sacramento. i can attest to his prowess as an attorney because on one very interesting occasion, he represented me. [laughter] on a speeding ticket. [laughter] and got me off with a minimum fine. [laughter] from 1965 until 1988, justice kennedy was a professor of

constitutional law at the university of the pacific located in sacramento. he provided valuable support to gov. ronald reagan on a number of legal issues as a volunteer lawyer. he was appointed to the united states court of appeals in 1975 we served for more than 12 years until president reagan nominated him as an associate justice of the u.s. supreme court. he took as current seat in 1988. president reagan remarked that his career as a judge in the u.s. court of appeals for the ninth circuit, as a constitutional law professor and a private practice was marked by devotion to the simple straightforward and enduring principle that we are a government of laws and not of men. justice kennedy has played an

integral wrote in the consideration and decision of some of the most significant cases and the most serious constitutional challenges in our nation's history. he has been a staunch defender of first amendment rights, individual liberty against government intrusion and federalism. these are core themes of our preserve the constitution series. we're honored to have the justice your heritage to provide this evening's lecturer. please join me in welcoming the honorable anthony kennedy. [applause] >> thank you very much. good afternoon. my fellow citizens in the nation that must see ever closer to the idea and reality of the rule of law.

it is a special privilege and pleasure to be introduced by my long time and valued friend. ed came to sacramento in the late 1960's. at that time, there was still in the state government a continuing tradition that public service was a high calling. public service was an honor and a trust and the duty. -- and a duty. in my early years in sacramento, i had the good fortune to meet leaders of the state of california, the heads of executive departments. they appreciated the fact that civil service is a public trust. the whole idea of democracy is

that each generation is the trustee for the next. each generation has the obligation to ensure that democracy is stronger for the next generation that is for our own. each generation has the duty to conserve and to preserve and to transmit the assets of a democracy. trusties' do not grab all the assets for themselves. ed meese was squarely within the tradition. he considered public service to be a great honor. it is again my pleasure to be with you this afternoon because you were the ideal of a dedicated public servant. your work continues here at

heritage for which i congratulate you. the heritage of freedom is fragile and it must be transmitted from one generation to the next. that is the purpose of the heritage foundation, a remarkable institution which exemplifies one of the strong voices of a pluralistic and principled society can produce. the heritage of our freedom is closely tied to the constitution of the united states. the heritage of liberty is bound up with the constitution of the united states. some of the baby thinking, it is pretty good. -- some of you may be thinking, it is pretty good. here we are.

americans talk about the constitution and there is a reason for that. the constitution gives us our identity. the constitution gives us ourself authentication, self- esteem, defines our purpose, it defines our mission, it defines who we are as a people. we come from many ethnicities, nationalities, religions and yet we are bound together as one people because of our allegiance and our respect and our reverence for the constitution. this is the link, the bond to history and to our heritage. it is unique or almost unique in the world.

this type that we have to our competition -- this time that we have to our competition that defines us, it gives us stability and the purpose and mission to our people and it is the envy of the rest of the world. the british revere their constitution as well. not quite the same. william gladstone, prime minister of england, one time talked about -- compare the american and english constitution. he began by saying the english grown, theon was american constitution was something that was made. if you ended there, it sounds

like something that was patronizing. he went on to refer to the american constitution in the most laudatory and complementary of terms. he said in that same statement, just as the british constitution is the most subtle organism ever to proceed -- proceeds from the womb of a long gestation of history, so is the american constitution, the single most wonderful work ever struck off at a given time from the purpose of man. this was a highly complementary statement. it is hard to find superlatives for the work the framers did in philadelphia in 1787. ook, which i have

mixed ideas about to because it is filled with conversations that never could have happened -- [laughter] but the title is "miracle at philadelphia." and that is not wrong. washington, of course, was the presiding officer of the convention. the american constitution was by accident and design. the delegates -- the first month, would there be a president, would be a council, with the president have an absolute veto? at the end of the month, none of these things for resolved. at some points, at the delegates would say, the 18th century

equivalent of we are out of fear. washington would say, gentlemen, please stay. you did not walk out on the general. and stay for three months and finish the document. in historygreat if's is what if jefferson had been at philadelphia? it is interesting that two of america's greatest thinkers john adams and thomas jefferson were not at philadelphia. adams was the american minister to the court of st. james. jefferson the american minister to paris. jefferson made a tremendous contribution. he sent to his friend madison

over 200 bucks -- books on political thought, political history. my surmise is that some of those books must have been about the dutch federation. jefferson was not there. he did get his hands on a copy very quickly of the constitution. we e-mail the copy for him over in paris. he said, where is the bill of rights? the answer was, there is no bill of rights. every people on earth is untitled by nature -- entitled

by nature to a constant -- to a bill of rights which protect them against their government. this foreshadowed a problem. george mason was one of the members of the virginia delegation. he had written the declaration of the rights for the state of virginia in 1776. it was a few months before jefferson wrote the declaration of independence. when the convention was over, mason, who was a member of the virginia delegation, was greeted would not sign the constitution. washington was -- was -- was a

member of the virginia delegation, would not sign the constitution. washington was infuriated. so came about one of the great informal agreements in american legal history. there was an agreement that if the constitution ratified as written by the 77 convention, there would be a bill of rights. -- by the 1777 convention, there would be a bill of rights. so we had a bill of rights in 1791. we have a hamiltonian structure under jeffersonian bill of rights. -- structure and a jeffersonian bill of rights.

one of the principal structures is separation of powers and checks and balances. we use those terms often interchangeably. they have a different crest. separation of powers teaches that each branch of the government has a certain autonomy to act on its own. checks and balances works the other way around. it indicates the government cannot operate unless the branches interact with each other. there is a certain newtonian metaphor to checks and balances.

the framers of the constitution and their fellow countrymen were sons of the enlightenment. it was not just jefferson. many of the framers were fascinated with all sorts of gear is in balance wheels and clocks and pendulums and machines and they could see this newtonian metaphor with checks and balances. two components of the congress must act in concert. congress in? , the president vetoes. congress overrides, the court's review. like a pendulum or a clock. this metaphor captivated the

american mind. the framers are not only good inventors, there were astute -- they were arrested learner's of human behavior. -- they were rescued learner's of human behavior. -- astute learners of human behavior. the indictment was so powerful -- the indictment was so enlightmenyt wasigh so powerful, newton was the

poster boy. this idea that if the apple fell out of a tree, there was a lot of nature, a universal principle, the human mind of its own force could discover was liberating. this idea swept the world. do you know who became the successor to the mantle of newton? this was not a celebrity crazed era. but washington became the most admired person in the world. there is a connection. he was the poster boy for the american revolution. there is a relation between the two. the framers demonstrated that the human mind of its own power

can discover and right laws of a decent government. this is the force that separation of powers and checks and balances had in the original constitution. you do have constitutional law courses on structural mechanisms and the constitution. this is just a drive-by discussion. i should mention of federalism as one of the other great structures. i once gave a lecture to some

patent attorneys and they are a difficult audience. [laughter] you're trying to get their attention. they are busy with quadratic -- country at the crack -- quadratic equations. i asked them if the framers had applied for -- this is metaphorical, not technical, of course. may be difficult with them with checks and balances. it was a brilliant implementation. in fact, if you look at article

one and look at article 2, the stylist completely different. article one sets out with great precision. what are the powers of the president? the sentences are longer, the style is different, in the middle of the sentence, you have to pick out the executive power, for ministers -- foreign ministers. there is a reason for that. the framers were not sure what the executive would look like, but they were confident it would be washington and a trusted him to establish the tradition. -- and a trusted him to establish the tradition. i did not think checks and balances were a breakthrough in the prior state.

you could see the reflection of its in england. military, power of the monarch, emerging independent judiciary. i thought, a brilliant implementation. federalism is a unique contribution. the framers had the idea that you have more freedom if you have two governments instead of one. you almost get intellectual whiplash. why more freedom if you have two governments? many students think of federalism as being a brilliant

administrative device. this was the biggest land mass since the roman empire to attempt a unified government. it took six weeks to get from new england to south carolina. if you are a business person or a manager, you have territorial division. in the 1960's, and the 1970's, when european and scholars were looking at american federalism to see if they could find some lessons for the european union, many of them thought of the american federal system as being a device of administrative convenience. but that is not the whole theory

of federalism. the theory of federalism, the genius of federalism is that it is wrong as an ethical matter, wrong as a moral matter for you to delegate so much power over your own life to a remote central authority if you can no longer plan your own destiny and the destiny of your children. that is the moral and ethical underpinning of federalism. those are structural components, hamiltonian structure. -- there mightut be tension between the two, but there is a stunning synergy.

structural components of the federal constitution work quite well with the bill of rights. the bill of rights, you can have a full constitutional law course on the bill of rights. this idea of structure and substance is the pedantic device. the first amendment, you cannot have a government work unless you have free speech. it is structural in that sense, but it is also a substantive right. it is inherent in the human personality and dignity that you have the right of free expression and free worship. in thinking about the first amendment speech clause, it is hard for me to think without a black board.

even if it does not work because there are at least three different realms for speech protection. if i drew circles, it would look like a target. you would inevitably have to assign a more central feature to one type of speech than another and i do not think anyone type of speech holds a priority over any of the others. if you could think of a venn graph, it shows the circles that move. the overlap each other, but they are transparent and the circle keeps its 360 degree of integrity. sometimes one is on top of the other. if you think of that, you can think of the least three components of free speech. the first is political speech.

this is essential. it is essential to the american democracy. there are many people that think -- and rightly so -- that there other things in the world more important than politics. arts, culture, religion, science, philosophy, sports. whether the umpire got it right this is all part ofn the speech and thought and believed but is protected by the

first amendment. -- speech and thought and believed that is protected by the first amendment. and there is a third dimension. speech is what allows you to define your persona, your personality. your speech, your thoughts, your beliefs are who you are. this is an essential human rights. the supreme court has protected speech -- that is hideous. we only get those cases. [laughter] we had a case recently protecting speech videos, i

never looked at these things. women in spite heels killing -- spiked heels killing. we protected speech on the day of the funeral of the servicemen killed in the middle east. there were protesters using derogatory words about gays, saying that the military would be doomed prepetition -- perdition because it protects gays. at first glance, you might think that the court and its first amendment jurisprudence has adopted, embraced the philosophy

of relativism. moral relativism. all ideas are equal. who are we to say that one idea is better than the other? if we were going to have a philosophical argument, you could make a very strong case, all speech, all art is equally good. you would find a strong argument against that. relativism leads to skepticism. skepticism leads to cynicism. cynicism is corrosive.

it is a philosophic decision of the first order to embrace the philosophy of relativism. how do you explain the supreme court cases? it is very simple. the supreme court is not for the government to decide. the government does not take a position on which philosophy is correct and incorrect. this is for the people. it does not mean that people cannot and should not and must not debate ideas to determine what is good and what is bad and

what is right and what is wrong and what is virtuous and what is evil. those of us to live taught in law school -- who have taught in law school know that law professors use skepticism, but that is just a method. it is not an end philosophy. it is order -- is an order for you to think. those of us who have taught that in the number of our young people are reluctant to embrace some ideas as good and some ideas as bad. but please do not think that this is endorsed by the supreme

court. it is a choice that society makes. i've been talking about the constitution. you have a capital c. that is the document the framers hammered out with washington in 1787. it was ratified in 1789. the formal document that lawyers argue and judges interpret. that is the big c constitution. constitution with a small c is a word that has been used for centuries. it means the sum total of customs and traditions and beliefs and

historical heritage that define a people. it was used by aristotle. the whole point of official free speech is the people can define their small c constitution so their country has a meaning and purpose and a history and destiny. it is the small c constitution

that other people look to, other countries look to come to see what the united states is, what it stands for. if you have more relativism -- moral relativism as the public philosophy, you have a problem with teaching the importance of our heritage. you have a problem because teachers are reluctant to say that one american hero was good and virtuous. everything is the same.

the result is that young people are discouraged when finding magnificent examples in our history. if you say something important, that is an ethical judgment. that puts us at risk. it is not just public servants that have the duty to preserve and protect and defend the constitution of the united states. all citizens have that duty. this requires conscientious,

conscious effort. you do not believe in freedom because you take a dna test. freedom is taught and teaching is a conscious act. all of us have the duty to preserve and protect and defend the constitution. but you cannot preserve what you do not comprehend. you cannot protect what you cannot transmit. you cannot defend what you do not know. the small c constitution, the heritage house and so many other distinguished groups in american society contribute to, must understand it.

we live in the age of -- let me make two more points. let me tell you to stories about poland. -- two stories about poland. we were in poland eight years ago in september. i was going to visit the supreme court's in poland. when you go to european countries, you have to go to three supreme court's often. you go to three dinners and he brings three deaths. [laughter] -- you go to three dinners and gifts.threeyou bring three [laughter]

i have agreed to meet with the faculty in warsaw. they range for me to meet with the faculty. and we did. midway through the meeting, there were some notes being passed and they said, we did not realize are answering law students are here for an orientation day and they would like for you to talk with them. law in europe this undergraduate. during a few countries have a graduate law school system. -- very few countries have a graduate law school system. the students were basically high-school seniors ready to enter their freshman year of college. i talked with them. it was a room smaller than this. we started talking and a student

raised their hand and she said, checks and balances are very important in your constitution. the present checks the congress. who checks the courts? we talked about that. i'm not sure had a satisfactory answer. [laughter] another student raised his hand and said federalism is very important america. money goes to washington and then goes to the states with conditions. this undermine federalism? as didn't raise their hand and said, she's justin and john marshall is very much admired -- chief justice marshall was very much admired. they said, it's a queue until

1787 to get your constitution. -- it took you until 1787 to get your constitution. we have been standing in your constitutional history since the fourth grade. if i did that class at american university i would've said, that is a great class. i told the same story that night in front of the presence of the university. -- president of the university. if you wanted to be a doctor or a scientist or an architect or a lawyer, you could not do it. he went into the schools for 50 years. we had the best teachers in the world. in the united states, i get

visits often from high school groups friends of our family will bring their teenagers. i am often quite impressed with their grasp of american history. but there are some real problems generally. we were in a place this summer were people had gone together grants for exceptional high school students to go to europe. they come back and give a report. this one student had gone to auschwitz because that is where it schindler's list was found. there must be substance.

this time compression that we have is aided by the fact that we have new media. this is a subject for a whole lecture. we have the internet and is this conversation that we have in our small c constitution. must strive to become more decent, more rational, more thoughtful. there was never a golden age of political debates. it is always some much raucous and we cannot expect the political world and the public discourse to be in the confines of a court case or a legal argument. we must pay more attention to making principled -- there are

tremendous changes. we had a case in which the question was whether or not cable-tv must carry rules for broadcasters. the technology is going so fast, we are reluctant to freeze into the constitution first amendment principles based on technical mechanisms. the emergence of the internet tan twitter and other innovatios shows the wisdom of that. we're going very fast. it is important that we use this new power, at this new policy we have -- potency we have to have a civic discourse in a small c

constitution. that is respected by the rest of the world. make no mistake, the verdict is out on democracy. they're looking to the small c constitution to see how democracy works. i will close by suggesting one concept that is of some help. the supreme court's has invited -- is invited to go to the state of the union address. we go as a matter of etiquette. there is a great -- there is a beautiful credenza, which is the desk for the clerk of the house of representatives. it is a five sided credenza with

five different planes and a single plane across the front. it says, equality, justice, liberty, freedom. what is the word in the middle? it is tolerance. you have to be careful. i do not know who made up of these words. equal justice under law, supreme court's, that was made up by the architect. [laughter] i am not sure about the prominence of tolerance. it is an important word. the framers did not use it very often. speculation on my part, i will check it with some scholars. i think, in part, it is because the toleration acts had a lot of

baggage. they did not want to bring in the baggage. it was not a word used very often. it was a word which found its force and its legitimacy and power and necessity -- tolerance is the essence of humanity because all men are activated by a folly and vice. be careful of the relativism calculus. tolerance does not mean that i accept your views as right.

our european friends seem to be going in a different direction. the one the government to enforce speech laws. -- they want the government to enforce speech laws. we have not chosen that direction because we think the power of speech and the power of a small c constitution, which is a decent and respectful, can shame people who are intolerant there are some close calls. can you tolerate intolerance? we can discuss that. it does not mean that you tolerate evil. hitler was evil, maniacal, insane. those are evil acts. we think of speech, the calculus

is different. it is a strong society which must immerge and remain strong in order to make our speech the envy of the rest of the world so that freedom can vance -- can advance. that is the purpose of heritage and for the work of heritage and for inviting me here, please accept my thanks. [applause] >> the justice has agreed to take a few questions. we have had a few questions submitted by members of the audience.

let me ask you first -- this is a rather practical question, you've spent thousands of hours reading articles and transcripts and writing and rewriting opinions. what has contributed most to your decision making during her time on the supreme court? is that the quality of the briefs, discussions with your colleagues, or the oral arguments? >> some of the esteemed attorneys to appear before us, i'd been reading briefs for over 35 years and i've yet to find when i cannot put down in the middle. [laughter] when i was circuit justice for the 11th circuit, i went to meet with my -- with the attorneys

and the judges and as a courtesy, we met on saturday morning and they were dressed casually. do you have any questions? and somebody said, how do you read all of those briefs? i said, i assign cases to my clerks. if it is difficult, i bring it home over the weekend. i will read a second time with the opera. the audience was too polite to roll their eyes. it came across as hifalutin. i thought i lost the audience. a fellow raised his hand and said, i have a role when i ride those briefs. i have a 16-pack brief and day 2

6-pack a brief. and i said, i remember your last one. [laughter] the briefs are very well written. they're tremendously important to help us understand the consequences of our decisions. when i first came on the court, i thought it was an antiquarian exercise. it is surely forward-looking because you are bound by what you do. the oral argument, sometimes we do not behave well. a good oral argument is like a discussion of a doctoral thesis. it is during helpful. it is really -- it is very

helpful. it is all of the above. discussions with colleagues, at their mostly in writing. -- they are mostly in writing. it is a good process. >> the next question. i think you've already answered it. what makes for a persuasive briefed? >> it shows the consequences of the decision. there are of tremendous importance. >> what has been the most difficult case you have decided? [laughter] >> the one i am working on now. [laughter] >> when warren burger was chief

justice, the court decided far more cases per term. the court now decides about half that number. there are nearly 10,000 cases every year. is there a particular reason for a reduced caseload in recent years? >> we are not sure. when i came to the court, the first year we had over 150. by april it was a nightmare. you could barely read the things. some of the justice -- you'd have to write a concurrent opinion. 150 was far too many. 70, 80 is not the optimal capacity, but we wait until we find cases where the federal

statute is declared unconstitutional or the circuits are in disagreement. many of our cases come from the acts of congress. the bankruptcy reform act almost a decade ago produced a number of cases. there have been many major congressional enactments and those produced the cases. we wonder about this. we do -- we take cases because we think our guidance is necessary. >> some prior justices have commented on the quality of ethics -- of cases seen before the court. >> when i went back to our

hometown of sacramento, i had to go back into the courthouse to get a document. as i was going up the steps, my heart started to beat. when i was arguing the case, i would get really nervous. i gets very nervous when i go into the conference room with my colleagues. i then have to argue for the cases. i want to make sure i do not miss. i appreciate what the advocates have to go through. they can be tremendously helpful. since we do not talk with each other, this is the first time we may have an inkling of what the

other justices thinking. some of the justice -- some of the questions are designed for another justice. if we behave well and the council can have an exchange and can enter the conversation the court is having with itself, it can be a wonderful dynamic. we're very fortunate that we have a dedicated, experienced by our -- bar. that is necessary for us to understand the consequences of our work. and to write an opinion that not only is understood by the parties, but the gains the

allegiance of the american people. thank you. >> justice kennedy, we appreciate you being are lecturer. we would like to present a small memento of the occasion. this is a familiar -- two volumes said of his commentaries on the constitution. we hope this will remind you of your service to the heritage foundation. thank you very much. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012]

>> tomorrow on "washington journal," we will talk about older americans and health care with james martin followed by discussion with the co-founders of the can kicks back, the campaign to fix the national debt. and a petition filed by residents to secede from the united states. washington journal, with your phone calls, tweets, and e- mail's. >> we can remember barack obama's speech in 2004, the dazzling masterpiece that instantly makes him a national figure and four years later, the most honorable candidate for the presidency. lincoln is a dazzling speech in new york, it is a beautiful testament to the quality of his mind, the research he does, the

logical argument. when he runs for the set that, barack obama gave the speech in 2004 running for the senate in illinois. abraham lincoln ran for the senate in illinois and he lost. if you want to think about abraham lincoln in 1860, think about barack obama running for the presidency in 2008. if he had lost the senate election, that is the level of national maturity we are talking about here. >> profiling historic and modern leaders to show the lessons that can be learned from those that have had the greatest impact on the issues of their time. sunday at 9:00 p.m. and midnight eastern part of the holiday weekend on c-span to. up next, the history of the presidential appointment process with public policy professor james sister that criticizes the

current confirmation process and it talks about how it can be improved. this is just under an hour. >> what happens the day after the election when the president of homes of pointing? it will happen one way or the other. the romney transition team has been working on this for months and i am sure they are ready for it. the obama administration is ready to fill vacancies. this will have rebels all the way down the hierarchy. what i would like to discuss tonight is how we got from where we are, the politics of patronage, the challenges of recruiting political appointees , how the system results in major delays and managerial destructions and how it undermines presidential leadership and good management.

and finally, possible remedies for reforming the system. why do we get mad at government incompetence? because we expect a competent and effective bureaucracy. you create bureaucracies that hire competent workers that bring specialization, expertise, accountability, and continuity. there is no alternative in large-scale systems to organize great amounts of people to accomplish a goal or mission. this is not the way the united states began. it took about a century to figure it out and half a century to implement. the spoils system of the nineteenth century, there has been a constant tension between partisan control political appointees in career experts. let's take a quick look back at

the spoils system. populatedfederalists' the government, but well bred and well born, basically the elite of the revolutionary time. this really changed when andrew jackson was elected, a champion of the common man and during the founding era, he switched from the founding era to bring his supporters into the government. his conviction was that officeholders in the government of their offices have and they basically thought that government jobs were simple and that anybody could handle them. mainly east of the mississippi river. the partisan approach led to the development of the spoils system and the governor of new york coin the phrase, to the victor belong the spoils of the enemy. in the middle of the nineteenth century, wholesale changes of personnel at partisan changes

came with each new administration to spread corruption and kickbacks, so if you got a job with the the government, you were expected to take part of your salary and put it back in the party coffers of they could use that to campaign for the president next time. a progressive farm for reform, the spoils system. the president wants a cake and everybody wants a piece of backache. president garfield was elected in 1880. progressives were after this for a while. garfield wrote in his journal or letter back to his wife about patronage. my day is frittered away by the personal seeking of people when it should be devoted to the problems of the country. for years of this kind of dissipation maker will be for the rest of my life. he thought this was a big

hassle, and he would only suffer the torments for a few more months because on september 19, 1881, he was assassinated by a disappointed office-seeker. chester a. arthur was a party man, vice president, and of course the crazy thought that arthur would give him an office. there were about 100,000 offices that turnover regularly in the united states offices. this led to corruption. you might not think of teddy roosevelt as a human resources specialist, but he was. this is what he had to say about the spoils system. the spoils maugre and the spoils speaker are the bribe takers and

the bride giver of public funds. that was his perspective and i think it was accurate. garfield's assassination led directly to the pendleton act that established the merit system, principles, no by in a selling of offices, hiring based on competitive examinations open to all. based on performance, not party affiliation or personal discrimination. no partisan political pressure, so the merit system began covering about 10% of government positions. now most of the government is covered by where it systems. this is the challenge of political appointees in the modern era. fast forward to the twenty first century. because of the legacy of the

spoils system, the united states has more political appointees than any other in advanced democracy. as you can see, the numbers are in the hundreds and the consequences for the united states of having as many as we have is problematic. on the positive side, political appointees of the new president control the executive branch, representing the new party and agenda, they provide democratic legitimacy, a change of government leadership after a election, and appointees bring those changes. they are confirmed by the senate which gives them constitutional legitimacy and they get new people, ideas, and energy. all of these things are positive aspects of the spoils system, but the downside is that it is an overwhelming task, especially at the beginning of a new administration. there is quality control that is difficult and the lack of

continuity at the top of the executive branch is problematic. the number of political appointees has been increasing and has doubled since 1960. there are more programs and agencies, of course, and presidents want more control. the office feel they can't really trust civil servants that might be committed to the previous administration. richard nixon who said that they are dug in establishment terrorism's. he wanted more of his own appointees, but this is a bipartisan thing and each president wants more control. they think having their own appointees is going to help them. the top levels of the government have not changed significantly. departments have increased by about five, but the lower levels have increased considerably. as you can see, there is a lot of over russia there in recent years.

i also want to focus on the total number of political appointees and appointments available to each president. these are the main categories. presidential appointment with consent at the set, about 800 people, they are at the top of the executive branch, these are constitutionally established offices of the united states. each one of them is created by a congressional statute. non-career senior executive service. it has about 8000 career people, but 10% of those means nonpolitical appointees. it is a bridge gaps between the top-level executive and the next layer is of mid-level management. the next category are level 1-

15, it means general schedule. these were created in 1953. republicans were so starved of getting offices, eisenhower did not approve of patronage and did not want anything to do with a, but the pressure from the republican party was so great that they brought patronage into the white house and created in schedules c positions lower at the bureaucracy. at that time, there were about 200 of them. this salary range at the levels might seem to you and me that $200,000 per cabinet secretary, teams like a lot of money. have comparable levels, it consists of millions of dollars. it is a challenge for every

president, a newly elected one comes to office. it would seem like a dream job to you, but the reality is very much different. every time we make an appointment, i make mine enemies and one in great. there is no way to -- chase undermayer said they had 70,000 resumes in the database, president obama had treatment -- 300,000. a lot of these people are not qualified, but you have to separate and deal with that volume.

it is very difficult for any new administration to deal with. choosing appointees might seem easy, you look for the best and the brightest in your own party. it is much more complicated. consider the criteria for selection. there is always pressure for patronage and campaigners that are eager for the spoils of victory. these campaigners have been out there working for a year to try to give the new president elected, they are working hard, and they want jobs. the head of the campaign is always putting pressure on the white house to get good jobs to the campaign. pressure from congress comes flooding in. they want a place constituents, staffers, having moles and the executive branch is useful.

so pressure from congress and even presidents have to resist pleas from their own friends, president carter wrote in his memoirs, i would be inundated with recommendations from every conceivable source. family and friends would rush forward with proposals for their candidate. the president him or herself has to deal with this and the office of transitional personnel should be a buffer for the president because an old friend asks for a favor or something. presidents are politicians and they say they're glad to do it, but the person has not been compared to all the other people and the president should say, i would love to have you but you have to talk to my transition personnel. while presidents what loyalty, but it comes in different

flavors. in the reagan administration, they considered them retreads. theological loyalty, they had a clear ideologies. they write those questions and so forth. and there is personal loyalty, old friends that were with the president. president clinton to not declare and ideologies, but he did have the standard of ethnicity, gender, and geography. he has a pretty clear ideologies

and they can tell the people that don't agree with him, but there is also a bunch of moderate republicans that don't have the same ideologies. if he does win, the party factions are going to fight this out over the personnel selection process. it is one way to tell which way they might tilt watching where people are appointed. the third criteria, they want competence. there is policy expertise, there is managerial experience, there is political connections, and so forth. there are different ways of looking at that. choosing the best and brightest is not a simple task. so if the cabinet secretary comes in and he or she wants to put together his or her own team, people i can work with that i know and trust and

respect their competence and so forth, but the white house has a different perspective, these people work for the president, and we decide to these people are going to be. there is always a give and take between the white house and the cabinet secretaries. if the white house wants to win, they are going to win. lookve the nominees, let's at this from the perspective of the potential nominee. this is where the innocent until nominated part comes in. this can be brutal in washington, and at times, a blood sport. the standard form is a security clearance, it covers travel, foreign contacts, full fbi investigation every time you go out of the country, you list every address you have ever lived that. very difficult if you don't keep those records. another standard form his

financial disclosure. you may have to divest assets, restrictions, sometimes these are onerous. you often have the higher lawyers and accountants to make sure they are filled out right because you have signed a thing at the bottom that says us where this is true and a mistake could have serious consequences. each jurisdiction has its own set of questions. the most important is the white house personnel data statement. they will focus on political liabilities and they want to protect the president, so they're going ask you very invasive questions about an abundance of caution. they will look at every article, every facebook coast. what you post on facebook never goes away. if you are up for office some

time, it might come back to bite you. they will ask you embarrassing questions, financial dealings, the arrest record. plagiarism, joe biden and ted kennedy both got caught up. students don't plagiarize, it can come back to haunt you. all of these things are very invasive, sometimes embarrassing. the total details on these forms comes out to 2820 separate questions. many of them are redundant, but that is an awful lot of questions to ask. and each time there is an embarrassing nomination, a new layer of questions is added to it. they will provide anything that might embarrass the president and your fear is that the reporter will find it and it will end up on your home town

newspaper. these difficulties are as act -- exacerbated by a politicized or polarized political climate. cellphone cameras, you are on all the time and you can't be making remarks that you think will remain private. research operations are going to look for any bit of dirt they can find on you, investigative reporters are also looking for sensational sorts of things, and all of this wound up in a 24- hour news cycle with the demand for sensation. all of these things exacerbate the problems of being vetted for presidential appointment. some examples of public scrutiny that you might remember.

president bill clinton wanted to appoint the first woman as attorney general in 1993, so he was going to appoint his early, but it turned out she hired some illegal immigrants and did not pay social security taxes on. president clinton turned to his second choice, a federal judge appointed by president reagan. she was pretty safe bet she hired an illegal alien but she paid the social security taxes and it was not illegal to hire an illegal alien but it was close enough that they did not want to put her out there. she had to withdraw all so even though she had not broken the law. clinton 0 of -- has ended up with janet reno and ended up to regret it when she appointed a special prosecutor. you might remember bernie, the new york city police

commissioner nominated by president bush to be part of his department of all land -- homeland security. they didn't vett him carefully because later he pleaded tuilty to -- guilty to fraud. or the designation as secretary of labor that had to be withdrawn the next week because a woman gave her some money and it may or may not have been illegal. but she had misled the vetters, and they threw her under the bus. after the governor romney campaign, there may be a new set of questions. it is a difficult thing if you are nominated to a prestigious

post as an officer of the united states. the most important part happens in the senate. for instance, bill clinton wanted to support -- appoint robert reich. robert founded intimidating to be at hearings in front of the senate. he wrote a book called lost in the cabinet. these are sometimes known as murder boards. you can see why it is called that. he is explaining in his book, the preparation and his aides helping him get to the nomination process and practicing with him. i am planning for a confirmation hearing, i feel like a prizefighter getting ready for

the championship fight. you have had absolutely no experience managing a big organization. have you ever had a payroll? should congress be required to pay half of that? i give long and complicated answers. tai bao says the team leader. this hearing is not designed to test your knowledge, it is to test your respect for them. you don't have to come up with the right answer. you're trying to show people how smart you are, and you will be in deep trouble. he says, hot dog i have to answer their questions? no, you have to respond to their questions. this is about your respect for them, the president's respect for them. barring an unforeseen scandal, they will confirm you, but you have to practice saying, i don't know, but i look forward to working with you on it.

he concludes, i feel like a child trying to learn how to ride a bike. it looks easy, but it's really not. another example of a difficult confirmation experience, john tower had been a senator in texas for years and george h. w. bush wanted him to be secretary of defense in 1989 but his personal life was scrutinized and he was accused of womanizing, alcohol abuse, so the senate rejected him 53-47. he had been a long-time respected senator, all the factors that i mentioned creator problem of turned down by qualified people. presidents don't usually do this, but they're people go out and ask somebody, what would you

say if the president wanted to nominate you for a position? some people say that they just don't want to go through the process. they cite family concerns and so forth because the press digs up dirt from your past, hostile senate hearings, embarrassing questions, and all of this for moving a family to washington for a few years at probably a lower salary than the one you are getting now. the problem of turned out is a real one and i have asked for critters about them, nobody wanted to say, i remember a bunch of people turned down an offer to be secretary. people don't want to hear that, but they tell me that it is a factor. as a consequence of all these factors, there are major delays in managerial interruptions.

the pace of appointments is slowing, the time to fill top positions has been slowing for decades. john kennedy took an average of 2.4 months to get his people on board. george w. bush took 8.7 months. in recent president has had more than 25 appointees on board by april 1. you can see that the percentage of people has been going time tn regularly. and remember, this is a total of 800 people. no president has had more than 240 people on board by the august recess. a good portion of the top appointees are not in office. this is a problem. why the steady slowdown? volume is the biggest reason. financial disclosure, conflict

of interest, fbi investigations, centralized control in the white house slows things down. it used to be delegated more to cabinet secretaries, but since 1980, it has been centralized in the white house because the white house has a stake in this and they want to control it. senate confirmation creates additional delays. senate committees often deal with the volume, so there will be hearings, grandstanding, and they want to make it difficult for the president of the opposite party, and then there are holes, a threat to filibuster. the senate can vote unless you can get 60 for closure which is very difficult. this gives a lot of power to an individual senator and is often out in secret. senator shelby is probably a record setter.

he put a hold on 70 nominees. he you might think he has a problem with these people. he is concerned for federal contracts and he thought that this would get the attention of the administration. first of all, the reporters figured out who it was and it became too embarrassing and he lifted the whole. nevertheless, that is a real problem, and all senators can do it. of the nomination and confirmation problems at up to significant delays. as you can see, little problem at the very top levels, 70 days, no big deal. as you move down the hierarchy, these numbers are additive. the assistant secretary level, quite a long lag in terms of

average time for appointments. this results in long times of vacancies. over the course of a presidential term, the total vacancies, as you can see, are significant and increasing. you might ask yourself, why is it important to have these executives in place? their policy-making positions, the people that have the authority or organizations are representing the president in his or her administration. they're also the legitimate representatives of the new political party. often, their officers authorized with the u.s. constitution, confirmed by the senate, and they have the authority to make serious policy decisions. career civil servants can handle all of this stuff, but they are not supposed to be making policy decisions.

also there are reticent because the new political appointee makeup man and reverse all of those decisions. career civil servants are understandably reticent and conservative, not willing to get out on a branch that a new appointee might come in and solve. these important policy issues are delayed in all departments and agencies until the appointment can be made. the system as it is undermines presidential leadership and good management. first, the average time in office is home to a half years. 25% still a lot longer, 25% shorter, but the average is two and a half years. changes in the leadership hierarchy are destructive. there is a learning curve that takes six months to get up to speed.

new executives often bring in their own entourage of people. this is destructive than any kind of bureaucracy or organization as you can imagine. good management is undermined. competence comes to be a factor, especially at lower levels. at the top, this is not so much a problem as high-visibility people who were presidents try to find competent people to be in these positions, so you don't have to worry about it. at the lower levels, particularly the deputy assistant secretary which is for five levels down, competence becomes to be a problem. the political recruiter might see this as a fourth or fifth level job, perhaps there is some

contributor to the president's campaign that needs to be rewarded, some support that they have to take care of. begin take this person and stick them in that job regardless of qualification. they oversee hundreds or thousands of employees. modern government is complicated. in the 60's and '70s, most of these levels were filled by career civil servants. over the last couple of decades, they have become politicized. career executives have the ability to carry out most of these jobs with policy expertise, managerial experience, they have networks in the executive branch and the very best are fully capable of filling those positions if the

president appoints them. in addition, deeper penetration undermines the career civil service. a ceiling on upward mobility, how they say i can only get that far, maybe i will retire early and go to the private sector and make some money. it is important to have that competence there and you have to have a career path that includes them, a deeper political appointees coming down the lower that ceiling comes. key policy decisions are not made until a new presidential appointees come on board. there is a decline in institutional memory, but if it is at the top and they don't listen, they might be missing something important. in addition, there are too many layers of authority that diffuses authority from the top. the more layers you go through,

the more things get distorted. the argument that the government types like myself say, if there are fewer layers, you'll get more direct responsiveness and competence. it also takes too long to fill these positions. to illustrate the question of competence, let's take the federal emergency management agency. you might remember them from last week. in 2005, think back to hurricane katrina. in 2001, president bush appointed joseph, the chief of staff in texas and the 2000 campaign manager, but no emergency management experience. under president bush, the number of political appointees went from 27-38. he brought in michael brown, his

college roommate. now in 2003, michael brown took over fema. he also had no previous emergency experience, the u.s. commission of the international an arabian horse association which was his qualification. hurricane katrina hits new orleans, brown took control of the relief effort, but it was a disaster both literally and figuratively. you may remember president bush said, you're doing a heck of a job. it became clear that he could not handle it, and he was replaced by the coast guard, a career professional that handle the and a good job. of course, the katrina disaster was not all brown's fault.

the appointment is an illustration of the problem, an increasing number of appointees, the lack of emergency management experience, layers of political appointees over career professionals, they thought it was being politicized. the bottom line is that leadership does make a difference. president clinton appointed an emergency management professional and it worked well in the 1990's. president obama appointed the current head of fema that you might have seen him on tv. he was the former head of emergency management in florida that had been appointed by two republican governors. the point is that professionalism counts. remedies. my remarks tonight are not intended to be an argument

against political appointees. rather i am arguing for moderation and balance. there is an important role for both political appointees and career civil servants. there is a contrast between the roles, too. political appointees are concerned with politics, politicians, and a command and want to change things. the career people are concerned with administration. the political people make policy as is appropriate and the career people implement those policies. the political people are concerned with change, either campaign. changing what is wrong with washington is a common theme in american politics. the career people are not concerned with continuity because they might be there for more years and they want those agencies to continue to run

smoothly. they're concerned with professionals. the political people are representative of their political party and their president. career people are technical experts. political people are thinking of four years or eight years, but their time in office is only two and a half years. career people have a longer-term perspective and political people are concerned about making this president look good and career people are looking at future presidents. there is an important role for both of them, it just needs to be balanced. the problems i have outlined a think our systemic. there are too many vacancies at the top of bureaucracy agents, too many layers between chief executive and the emblem mentors. it is hard to ensure confidence at all levels and there is the

glass ceiling problem that i mentioned. remedies. with respect to the white house, i am sure that the governor has gotten his personal transition ready to go and should he be elected, they will be going full speed. it used to be very problematic if you were planning a transition and people would say, they are measuring the curtains and the white house before they even get there. within the last couple of decades of the sort of good government types, it would be irresponsible not to plan for what to do during a transition period it is becoming a legitimate which is -- it is becoming legitimate.

we want president effective and ready to go. president obama will have to fill lots of slots as people start leaving. ok, so one of the lessons is that the transition personnel leader should become head of the opposite presidential personnel because that disconnect on the twentieth of january is going to be problematic. the head of the transition personnel should become the head of the office of presidential personnel. and the people should pledge to stay here because they found out over the long term that one of the best ways to get a job is to work in the opposite presidential personnel, you know what positions are open and to shift yourself and to those positions if he can. one of the keys is to get those people to pledge you a least one year. you can increase the capacity at the beginning of the new

administration and also beef up the fbi investigators said they can investigate people were early. there might even be permanent career staff for the office of presidential personnel which would give them institutional memory and a computer system that can work well. they might be considered wholly elected -- it might help. the senate could limit the number of days and make goals public. they can provide for an automatic discharge from the committee of nominations after 60 days or 90 days or something like that. in general, we should combine the forms for security clearance and financial disclosure. there is a committee working on it and we can reduce the intrusiveness of financial

disclosure forms to limit some of the financial and post employment restrictions. we want careful vetting of these people and we want to have a lot of information, but sometimes it goes too far. moderating that can be a useful thing. in conclusion, the real problem is systemic. the single most important proposal is the reduction in the number of political appointees. that is what i and a number of other people have been saying for a number of years. this is not likely to happen anytime soon. the resistance is going to be great, president what loyalty, the senate wants control. it is really hard to do that. appointees that want the prestige of that position. i worked on the volcker

commission in the 1980's and we recommended reducing the number of clinical appointees from 3000 to 2000. it did not happen. but basic reforms take a long time. the budget and accounting act was proposed in 1910, and finally in 1921 it was passed. the civil service reform act was passed in 1978 after decades of proposing changes, so it is possible that reform may come, but don't hold your breath. you can enjoy the spectacle of appointment politics while you wait. thanks for your attention and i would be glad answer any questions. go ahead. >> [inaudible]

>> i expect the professionals are doing their jobs, but it is a matter of magnitude and a matter of money and how much they can prepossession goods there. theirine they're doing job but the federal government can solve all these problems. it can help mitigate them, but i expect the professionalism these people are showing is better than it was during katrina. >> you pointed out the changes in appointment of the fema director. this offers an idea, why wouldn't it be advantageous for a future president to become a

reform president? the pundits suggest that the success of the director in dealing with the hurricane has created a small reverse a bubble for president obama. there is an example where competence may be a politically advantage for a president. can you think of serious disadvantages to appoint incompetent people to offices like this? >> of those people were political appointees and they were competent, which is good. but my general argument is that career servants are also competent and if we send out a layer of political appointees at the very top and let the competent career people who get promoted to those levels, i think it would be better for the whole government in terms of time and in terms of competence. you have political levels making policy like they should

and competent professionals advising those people. >> would you discuss the fairly recent trend using czars as opposed to appointees? >> there is no official definition, these are people that work in the white house and part of the white house staff. presidents appoint them to be in charge of a certain policy area. it is useful because there are fights in the department agency and each one has its own perspective. somebody has to put this together and advise the president. there is a good reason to have some of these people. the national security adviser was created exactly for that purpose.

the problem comes when these staffers not confirmed by the senate, so they don't have any authority to make decisions, but if they start to act as if they have the authority to tell cabinet secretaries what to do order run programs, it is problematic because the senate should have a chance to have these people and for hearings and so forth. it is really a managerial problem from the perspective -- it is often difficult because you have the supposed mental to do something but you don't have a budget authority, personnel authority, as you are out there trying to get people to do it. from the cabinet secretary perspective, there is somebody at the white house that may have more access to the president. i think that the czar zhu is a

managerial problem insofar as if they act like they have the ability to make choices on their own. i testified before a senate committee on this issue and i said that it is really sometimes necessary to have somebody doing those things, but they have to remember that they are purely advisory and they can't make decisions on their own. i think the national security advisor is important to have. >> you talk about the expansion of all of these hot presidential appointee positions and i was wondering, where does the legitimacy of the expansion come from? who has the authority to expand

and create more of them? >> it has to be created by senate and public law. if you create a new department, there will be a position confirmed by the senate for what ever. for non-career, there are 8000 people and the manager allocated those out. you can't have more than 25% in any single agency. those are basically managed by office of personnel management, but if the white house wants to make those appointments, they can. schedule c is also allocated among different partners and agencies. that is one of the places where campaign issues come in. you have all these people and sometimes the white house says, cabinet secretary, you can designate a half of those, but

we give the rest to reward our workers. the top level is a setback and the next two or managed by the office of personnel management. >> he make a compelling argument to reduce the number of pac's and so on. what is the incentive for any president to go along with what you say? i can't think of a single one. how can he sell it? >> that is a good question. the president says, you can find someone who is loyal to me and a democrat or republican, they think they will have more control, but the lower you get, the further it is between the president and that person in the person that ends up in the lower-level positions may really owe their appointment to

somebody on the hill or the cabinet secretary. that would be the argument that you might make to a president, and you might say you will end up with a more competent administration but presidents are not usually worried about the administration unless there is a problem or scandal. if they worry more, they might be convinced. and it is not just the president, it is the whole political party. there are people out there working really hard, giving up a lot of time, and the pressure to give these people appointments are really high. i don't think it is going happen. we have been making the government type arguments for a while. maybe someday there'll be some changes.

>> how much influence do think the wives of presidents have? in any of these appointments? >> at the very top, it is significant. the wives of mail president's play a very important role in advising them. nancy reagan was very influential, michelle obama. but that influence is not across the board. it is not systematic. if they see a particular person or they say this person is really on your side or don't trust this person, selectively, they have a lot of clout. i think it is used very selectively because they are not interested across the board, they are interested in specific

people. in limited areas, like any trusted adviser of the president would have. >> part of the assumption is that every time there is a change in administration, there is new personnel. most of these democratic and republican administration have government in waiting and they are a retread from one job to another, and should that shorten the process? >> they do have to go through the whole of fbi investigation for every appointment which just doesn't make sense. but your broader point that there are farm teams out there, think tanks, universities, businesses, that is true.

if you start at one level, get some experience, maybe you're qualified for a higher level, that is true. on the job training is very expensive, so it is useful to have those but i think that the total numbers would be better if they were reduced. some of the revolving door is entirely reasonable and legitimate and sometimes it is stretching things. in the back? >> this is kind of a chicken and egg question, every time there is a new scandal, another layer of vetting is introduced, which came first? when did the culture began to shift for tolerance of things that happened behind closed doors and one where everything is scrutinized? >> watergate investigative reporting was part of that. remember john kennedy got away with all sorts of philandering,

the press did not say anything about it and it gradually began 80'sange in the 70's and ha. and you also have polarization so you have opposition research people that are trying to do that. i think the real thing is polarization over the last two or three decades that has made it a lot worse. the 24 hour news cycle and so forth. it is not like there were never scandals in the past, but it is more problematic with higher visibility now and more polarized. thank you very much. [applause]

>> tonight, we talk about ballot issues that states voted on across the country during the november election. first, the legalization of the recreational use of marijuana and the discussion of marriage equality. the supreme court justice anthony kennedy talked about preserving the u.s. constitution. join us tomorrow for a discussion on the evolution of facebook with chris cox, an engineer that advised the ceo, talking about developments on the social media website like the time line in a news feed.

watch it on saturday at 8:00 p.m. eastern. coming next, a discussion on the legalization of marijuana. colorado and washington became the first states to a legalize the recreational use of the drug. it is still illegal according to federal law. they compare it to alcohol during prohibition. from philadelphia, this is>> dal book but it you have not seen the exhibit downstairs, i think he will be impressed with what has been put together in celebration of the prohibition and anti prohibition movement. it is exciting to talk about prohibition for the reason that the election has put the question of anti prohibition before us all over again. in addition to the ballot initiative in colorado and washington, we have medical use

approved in massachusetts and two new announcements in rhode island and maine that legislations will take up the question of decriminilizatino of marijuana for recreational use. the question of the day is one i will offer today which is what lessons can we draw from prohibition for today's issue? >> the first one we know that prohibition was a terrible failure. despite the best of intentions, there brokered reasons for prohibition. -- there were good reasons for prohibition. the efforts did not succeed. the comparison i make is to prostitution. every society since the dawn has tried to outlaw prostitution and no one has succeeded.

it is part of a world that once something and another part, it will be provided. that was the case of prohibition. we have seen as being the same thing with marijuana. changes in the law by popular vote now are a reflection of the knowledge of this. one of the very clear parallels between the u.s. today in the u.s. in the early 1930's leaving -- leading up to the repeal the prohibition was the need for tax revenue. it was the depression that ended prohibition as much as anything else because with 25 percent unemployment, capital gains taxes to not exist any longer. there were no capital gains between 1929 and 1933. the government is broke. where can we get some revenue? people recalled that before prohibition and the income tax amendments of 1913, as much as 40% of federal revenue came from the tax on alcoholic beverages.

today, no one seems to want to pay taxes. no one wants to legislate taxes. people want something, they can purchase it and the state or federal government are both will benefit as a result. we are in a double parallel. >> one point of departure -- there is a key difference between a lot and marijuana. one has a certain cultural tradition that transcends a generation. marijuana perhaps not the same tradition. what lessons can we draw? but i think you're right. alcohol was an integral part of western culture for millennia before prohibition. certification indigenous peoples in this country, marijuana has been the same -- for certain indigenous peoples in this country, marijuana has been the same. there is a generational issue at play here. people who grew up with the

presence of marijuana as being effective law -- a fact of life, it is different from what it was back in to the 1950's. >> what is interesting about drug law today is there is an errant -- under current taking place at the state level to legalize or relieved some of the criminal components, leading some civil penalties in place. the popular movement at local level, we still have a federal law. marijuana remains is scheduled one narcotic which means it is not for medicinal use. we are in a conceptual problem here. we have the federal government that is taking one position on the use of marijuana. state and local ticket a different position. -- taking a different position. how are they supposed to enforce the law? >> in the u.s., these debates

are not top down the gates. prohibition is a great example. there were dozens of state that experimented with loss -- with laws. these initiatives are a wonderful example of this dynamic at yet again. federal law has remained relatively unchanged and did this area but states experiment with different law. a different - in another country when there are changes in law, they are much more top-down. the united kingdom has had a lot of changes in drug laws. it is top down, from the capitol to the rest of the country. in the united states, these debates and other controversial debates tend to be more bottom up. that is what we're seeing with this debate just like proud of -- just like prohibition.

>> governance is what is hard. the question becomes once we release the pressure and are opening up the possibility for more recreational or medical drug use, that means the state is empowered to regulate, license, tax the use, sale distribution of marijuana. are there any concern that the power of the people will be subverted into the power of the government? >> there is another parallel with prohibition here. i study prohibition working on my book and the one thing that leapt out at me was the realization that it became harder to get a drink after repeal than it had been during prohibition. philadelphia as a wonderful illustration of this.

in 1928, if you were 14 years old and wanted to get a drink at fort -- at four plot, you did stop in 20 different places. liquor did not exist under the law therefore was not regulated. what operators had to do was drive the police. the philadelphia police department was the most bribable in the country at the time. in 1933 repeal comes and the governor put in the liquor laws that everybody in this room if you lived in pennsylvania, you know about. it became much harder. you have to buy only from the state. age limits, you cannot be near a church, school, hospital. an entire regulatory environment in which the state has a strong interest because of tax revenue

and individual retailer have an interest in keeping their licenses. they cannot take the risk that work easy to take during prohibition. our drinking levels and to the u.s. were down post prohibition. they did not get back to pre- prohibition levels until 1972. >> there's an interesting precursor to the polls that at -- the volstead act and deny -- and an act of 1913. opiates for medicinal purposes. it was designed not to be a prohibition effort but then later was converted into a prohibition piece by enforcement officials who went after physicians who are providing prescription for opiates to people who need it opiates, otherwise known as addicts. but addiction was not a medical

illness that was recognized so as a consequence, those physicians who thought it or operating in accordance with the harrison act or prosecuted and driven underground. that generated a black market for heroin. there is an interesting parallel there. we open up regulation, it could be that it's subverted in an interesting way. >> this relates to one of the major themes about prohibition in the modern drug issue which is enforcement. laws our words on paper. there are questions about whether the government will enforce them. is the federal government going to decide to sign prosecutors to bring charges against people? one of the legacies of prohibition is even after the 21st memo was passed and has gone from being in our constitution, the modern and minister of state is partly crated to prohibition.

to enforce the volstead act, the federal government has to hire lots of people, develop laws to regulate the new federal law enforcement officials. one of the themes drug laws implicate is the capacity of the federal government. whatever the federal government says about drugs, whatever this attorney-general or another attorney general says, might be different than what they do. do they have the money to go out and investigate or prosecute and they make that a priority? that differs from administration to administration. >> the same republican caucuses whoongresses of the 1920's were very dry and voting for stricter entire liquor laws with the very same ones that did not want to appropriate any money at all for enforcement.

they had the philosophical battle going on. one commentator said the drys had their law and the wets had their liquor. a congressman who was later the mayor of new york was one of the leading weapons in congress. every year he would introduce a measure to increase the budget from prohibition enforcement by 100 fold, forcing the dried congressmen to vote against enforcement because they did not want to spend money. >> what is the federal government posted to now? given the position they find themselves in which is very similar. they could agree to not change the schedule one designation of marijuana and under enforce existing federal law. they could go after egregious violators of the new state laws

that will permit more medical use or recreational use, which is an interesting term. there would still be egregious violations. large scale possession or odd distribution. the federal government could say we are not going to go after people roughly fall in line with state law but by late federal law but it -- but if they are not in complies with state law, we will go after them. what is your prediction of what the president might do in response to what has happened? >> the simple answer is the federal government cannot do much. it does that have much in the way of resources to do much in the criminal law area. what was true at the time of prohibition, criminal laws were state law matters. from a constitutional perspective, the federal ackerman getting involved in the criminal law. it is very unusual at the time. still now, about 90% of criminal prosecutions are at the state

level. there is not the interest, experience or resources to do that much at the federal level. there might be selective prosecutions for big dealers in the cases but unless something changes in congress decides to appropriate lot of money and there's a fundamental paradigm shift, there is just not much in the way. >> make a comparison to the highway loss. it into the 19170's, they said 8f you -- if you want your highway money, you should adopt this as a state law. >> what they want to? now after the supreme court's decision in the health care case, there are questions about the federal government's capacity. how that changes some of these earlier federal laws is not clear. one of the reasons federal government does it this way,

they did not have to hire people. they cannot achieve the regulatory goal without having to give people more -- to hire more federal officials. federal grants that states do things. drag law and enforcement [unintelligible] >> there is also interesting parallel to the state of arizona versus the case of the united states. the case is relatively straightforward. have states, like arizona, that are adopting laws at the popular level that the people of arizona wanted but it interferes with what the federal government prefers to do in the same area when they are regulating in the same area. you can imagine in the context of enforcement of drug laws for marijuana possession, the

federal government could file a lawsuit against jurisdictions that legalize recreational use our medical use of marijuana. does that strike you as something that is viable? what it does that strike me as likely. i'm trying to amass to the public support for such an effort. i like to step back a second. and make clear that i believe that our current drug laws are failing. i was never interested in marijuana myself. my kids were teenagers and let it be delayed their found out there using, it was very upsetting. i am making a case for the failure of laws to stop people from getting and using something they wish to use. the comment made by the governor of colorado the morning after the election when he said did not break out the fritos and the goldfish yet, the

federal government will make itself known. but it is hard to imagine this federal government suddenly sank many to but somebody in colorado who is acting much marijuana. >> i think that is right. that is an important lesson from prohibition as well. one of the other issues that often comes up in connection with federal drug laws is the enforcement of the laws and the result of the enforcement, which is to push the entire system of drug production underground treating black markets, giving rise to crime, culture and things like that. did that happen during prohibition? the rise of crime, culture? the anti prohibition, that results in a reduction of criminal activity in connection with drugs? >> to the first point, what we know is the national crime syndicates today was created by

and for prohibition. this is not to say there was not organized crime before prohibition. usually there would be a neighborhood in the city where you would have prostitution, gambling, drugs, liquor being sold outside of any regulatory system. all hours of the night. the people who control the neighborhoods were happy with the money they are making there. along comes prohibition and 70 large quantities of physical goods that take a great deal of space that needs to be moved from one place to another. in of philadelphia, the delaware valley was the heart of the chemical industry. a great deal of industrial alcohol was converted to potable aqua what he -- alcohol and shipped to many cities in the midwest and southwest. the philadelphia mob had allies in each of these other cities.

this led to the meeting that took place in 1929 in atlantic city. mobsters from six large cities came together at this in the kit, divided territories, set prices, made contracts. david bennett met in chicago, 21 cities represented, setting up their judicial system to fight complex. -- to resolve problems. the obvious parallel, the mobsters who were making huge amounts of money, untaxed, perpetrated a great deal of biting crime to protect their interests. we have the same thing going on now. mostly in mexico. driving the same sort of craven behavior in violent behavior because of this underground market. people who are most opposed to

any change in the marijuana and drug laws are the moral one and dealers-- the marijuana dealers. there were two groups in prohibition who were for it, the baptists and bootleggers. i think we have the same think's going on now predict how they manifest themselves questions -- = >> how do they manifest themselves? >> interferes to private enterprise. -- interference through private enterprise. >> there is one other possibility. thinking about how to solve this conundrum of legalization with federal enforcement. the federal government could punt the issue to congress and have congress change the drug laws themselves.

that would be an interesting play on the part of the executive -- the chief executive officer. what do you think about possibility? >> congress is more likely to have a unicorn. congress is still paralyzed, it is hard for it to do anything these days. it is hard to imagine it passing. most of the change has come from the state level. it the executive branch punts -- the second bush administration and forced drug laws more severely. this administration is less likely to a force -- to enforce them aggressively. major changes are really going to come from the state level. but i am thinking we should open

things up to questions. anyone who would like to ask a question, approached the microphone. it is on this side of the states. you can see down here in the corner. >> in your travels in this area, have any at you encounter any serious movement in favor of legalizing other drugs besides marijuana? >> i do not travel in the area but you are on the fringe of an important issue. the logic is identical for any drug. that is scary. the notion that if anybody wants carolyn, they can get carolyn,

is undeniable and scary. -- wants heroin, they can get heoin, is undeniable and scary. i have not heard anything going on in the political arena about legalization of anything beyond marijuana. we begin with a single step. >> i am not aware of anything. public opinion -- whatever the public opinion is about marijuana is much more stable than for other drugs. >> there is a different cultural context for each one of these drugs. and difficult to history. you can imagine there will be a much deeper set of opposition against some of the more problematic schedule one narcotics like the opiates and cocaine. but you are exactly right. the logic is the same. one way to hedge against that

possibility of that risk would be to adopt a much more structured regulatory posture with respect to marijuana which would signal that we are looking at this very closely and it is unlikely to be extended to any other scuttle one our conduct to the extent that it is posing a greater danger or less of a tax based revenue for the population. >> before the harrison act was transformed, during the regime when doctors were able to prescribe schedule one drugs, did that work? with a successful form of control? >> harrison act itself grew out of a treaty with asian countries that are providing much of the opium to the united states. it was a fulfillment of an international obligation demanded to distribution of opiate. whether or not it was working, i

do not know because it quickly turned. was not long before the harrison act was converted into a prohibition mechanism. >> i am not crazy about the idea people drinking alcohol and getting behind the wheel. i'm wondering about regulation regarding marijuana in terms of how much you can safely smoke or however you do it. >> pennsylvania is the head of the rest of the country on this. it is already advanced the law to operate a vehicle while under the influence of a certain amount of disability brought on by consumption of marijuana. many states do not have that law in the books because under the law, marijuana does not exist. just as during prohibition, liquor did not exist. and there were no loss for liquor. if you have legalize marijuana, every police car that has a

breathalyzer to determine how much alcohol is in the bloodstream would have a device to determine how tothc there -- to determine thc. this makes the case that legalization could bring about better control if he were drivers under the influence on the streets. >> i am an anesthesiologist. i have a quarter century of experience. i work in thomas centers and delivery rooms -- trauma centers and delivery rooms. there is a time and a place for drugs. one of the things that grieves me about my specialty is that in the last 30 years, there has been exactly one new drug to come into the world for the treatment of pain. my question is, if we were to

andze -- legalize the use of marijuana, might create a climate where people and organizations and companies of good will can look at marijuana, similar drugs and create new and better molecules to treat chronic pain? >> outside my area of expertise. here is what i would say. by mid to the meeting in bringing the entire thing above ground, you are right. there may be dollars that could go into a legitimate business enterprise that will allow for exploration and variation on the existing structure of marijuana and provide some sort of pain relief. pharmaceutical companies are already out there looking for the newest drug. i cannot see what it would not look on variants of marijuana as

a possibility. >> what would keep them from doing it now? they were certainly working with opiates. >> legitimate medical researchers have only access to certain strains of marijuana grown under regulated use. the history of drugs tells me all the local anesthetic used come to us from cocaine. >> fascinating. thank you. >> the united states would not be the first country to legalize marijuana. if we did so. there is the experience in the netherlands and i believe portugal also has liberated its traduce. i read somewhere they have the lowest use of drugs in the

european union. do you think there is anything we can learn from their experience that would inform the u.s. experience? >> even though a lot of these laws are symbolic, they do affect behavior. they do affect the sorts of decisions people make. a lot of the reason for concealing drugs is the rush of doing something illegal. so there is some good social science evidence to indicate that legalization reduces usage. what is complicating these countries as it is much easier for the government to make it illegal or legal and make that a nationwide policy. unless we had a federal law changing -- an alabama they might legalize it but enforced some parts of the old law and in san francisco, they might do it differently. we are likely to see a patch for of the current legal regimes

even if we had -- of different legal regimes even if we had a unified law. >> i hope one of the states will do it right in reduce consumption and there will be no crime involved and out will grow on every tree in the state. -- and apples will grow on every tree in the state. >> i think colorado will have to resume with caution. you can imagine having a greuel or that set the retail operation thevail so people can fly into colorado to consider marijuana. texted parallel from prohibition, it would be very close to the border. -- >> looking at the parallel from prohibition, it would be very close to the border.

towns has hotels that have a capacity of 2000 and it was all liquor tourism. but even things that are legal, you regulate. doctors are legal and regulate doctors. you can legalize and still have regulations. >> i think he would need it in part. you can imagine other issues that exportation across borders some state it will be ok, other states it will not be ok. they could millet maryland philadelphia or something like that. it could be potentially very dangerous. maybe one of the lessons from other countries is to make sure it is regulated in a way that comports with expectations. >>