ford had the house in ranchomy raj, there were olive trees out in front. for christmas they put white lights in the trees. nd she left them on that year, past the christmas and someone asked her why. she said that's how she knew jerry was ok. >> five years separates them in age. so she was a widow for the last five years of her life. we ask our guest about the legacy of the women we're profilingful -- profiling. in 1999 gerald and betty ford received the congressional gold medal. at that ceremony, president bill clinton spoke about betty ford's legacy with helping people with drug and alcohol addiction after she left the white house and we'll close with that. perhaps no first lady this our

history with the possible exception of eleanor roosevelt has touched so many of us in such a personal way. because i lost my mother to breast cancer, betty ford is a heroin to me. because my family has been victimized by alcoholism and i know what it is to watch good, fine people stare into their personal despair, i will be forever grateful for the betty ford clinic and for the millions of other people whose lives have literally been turned around and often say you may not have gone to that clinic but went somewhere because she showed them it was not wrong. -- for a good person and a strong person to be imperfect and ask for help. you gave us a gift and we thank you. [applause]

[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014]

>> tomorrow night, our first dy's encore continues with rosalynn carter. she traveled to latin american as his official envoy. she supported the equal rights amendment and she supported a bill in congress that dealt with mental health. hear from the former first lady in an exclusive interview tomorrow at 9:00 p.m. eastern here on c-span. starting monday, january 13th, we'll have new first ladies programs beginning with nancy reagan and after monday after that finishing with michelle ama on c-span 3 and c-span radio. and we're offering a special edition of the book first ladies of the united states. it provides a biography and portrait of each other lady, vailable for $12.95 at

c-span.org/products. >> i think it's really interesting to sit here and talk about how the republican party is less unified than the republican party when we think of this history, it's a great time to be studying this because we're seeing a republican party that is facing many of the struggles that the democratic party faced 20 years ago when they were tinkering with who is the reform process every single year. >> the connection in which they run all really matter. more than the underlying scandal itself when it comes to these comebacks especially if you're running in a context in which you can present yourself as an abused -- part of an abused group, abused by the system. you can really play that quite well. and whether that's the case as

eff talked about, whether it's rory moore in alabama which used the 10 commandments as an attack on christian conservatives is very much the case. >> this week on c-span, the state of the national party had a look of the politics and recoveries. saturday morn at 10:00 eastern live sunday on c-span2, your calls an comments for mark levin, best-selling author of nonfiction books including --ity ranny."ir -- tyranny." >> next spream court oral argument on the state's responsibility to control air

pollution. it involves a 2011 rule introduced by the environmental protection agency that would require as much as 28 states to curve power plant o zone and plant particle emission which travels in the northeast and mid-atlantic. >> your argument first this morning in case 121182. environmental protection agency vs. homer city generation and the consolidated case american lung consolidation homer city generation. >> mr. chief justice, in pro-mill gaiting the rule, the in .'s analysis proceeded three basic steps. first they performed a screening analysis to determine which upwind states would be covered by the transport rule. and in order to do that, e.p.a.

first identified the down wind receptors were in a state of nonattainment or had maintenance difficults and which upwind states were linked. and thord to be linked to a -- the receptor they downward had to contribute 1% or max to that downwind receptor. any state that didn't contribute at least 1% to any of the downwind any of the relevant downwind receptors had nonattainment in that area. second once they had been identified. p.a. sent a state emissions budget and to to that it performed computer ho deling to determine in addition to whave emission control evidents were already going on, which additional emission productions could be done by implementation

of control measures at various thresholds. and the thresholds that with elected were for nox, $500 per ton. the group one states were at a level of $2,300 per ton. the group two states were $500 per ton and the idea was let's see what emissions savings we could achieve, additional control measures could be implemented. >> those savings would not be evenly distributed among the upwind states, right? so some upwind states that were able to make those efficient changes will be carrying more than their burden of reducing the emissions that affect downwind states, right? >> they were two bay cease for distinguishing among the states. the first in terms of the $500 per ton threshold forer the

group to threshold states vs. three threshold. they were required to make greater pollution control efforts because they had some responsibility for the most serious problems. now, the point of your request would go to the fact that even among the states that were operating under constant cost control thresholds, of the states that had already implements cost measures up to that limit might have to do less in a sense because it would have already taken the steps that were required, at least as compared to an air quality only threshold. >> i don't mind the state having liss. i think north carolina said you can use those cost figures to do

less. and that's not challenged here. but what the application of the cost factor means is that some states that can more efficiently make the changes will be required to do more than merely account for their proportion of the down wind harm. isn't that true? yes or no. i think it's an easy yes or no answer. >> no i think it was the case that if you adopted an air quality-only threshold that it would be more likely to be the case that states that had already done a lot to control air pollution would have to take additional steps even if it was done in a noncost effective way. >> have you answered my question? es the fact that you begin

with the statute says that each upwind state has to account for its effect on the downwind states. but once having identified that effect, you then say those upwind states that can make the reductions more efficiently have to make more reductions than they -- than their mere proportion of the harm requires. isn't that so? >> i think it would be the case, yes, as compared to some air quality measures only, the use of would have the effect of distributing the burden in a somewhat different wathan if it had than if you considered air quality factor -- >> is the idea that the states are that required to do many or the states that haven't done much already? >> that's correct. and that's what i was trying to get out earlier that if states have to do less in order to meet the $500 -- in order to be in a position where they implement all the cost -- all the emission control measures that are

available at $500 per ton. if a particular state has to do more to achieve that it's probably because that state has to implement those measures on their own. >> the statute allows you to take that into account. >> the term that we're going to mean as opposed to each state whether it's inefficient or efficient has to merely redruce it's contribution to the downwind state distribution. >> the statue says that each state will don't measures that prevent sources within its borders from contributing significantly to downwind nonattainment. the purpose of the provision is t to allocate plame for an existing system. it's to devise a scheme that going forward will prevent nonattainment from going forward. if each state lives up to its obligation and if the downward ates made commensurate

attainments can be resolved. e.p.a. reasonably construed that erm that in common par lets we might say that dunking a basketball is a more significant achievement than somebody who is 5'10" than for somebody who is 6'10." charitable contribution is more by someone who makes $$10,000 aee. >> contribution happens to be sense. a both a negative the question for example whether someone who fatally stabs someone and whether somebody who fatally shoots them cribbed to the bad result.

>> i think cribbing in varying degrees. i would say that if you call this death by alternative means then both people might include this as significantly. but to include a hypothetical to a contribution that had a bad result. if you had a basketball team that lost the game by one point and the coach was asked to pinpoint the plays that cribbed significantly to the defeat, the coach would be much more likely to identify a mislay-up for a turnover than a missed half court shot at the buzzer. it's true that it would crib significantly in that it was a but if the cause. the outcome would have been ifferent but if you're talking about a bad result, errors that should have been avoided not simply the failure that's extraordinarily difficult. >> and par of your abs to

justice scalia's question that it depend on the time point, the time in which you measured? that is to say if you take a look at a state that for five years has been trying to ameliorate pollution you can measure it from the .5 years ago. and if you do that then you're not having to contribute more or don't you like that answer? >> i don't quite want to go there. i think there's a truth in that, but the point in which the states -- the point at which the states could make their obligation is triggered is by the promulgation by a new air quality standard. and the state is required within three years of the promulgation to promulgate a state tax that include good neighbor provisions. >> how far back? 2006? > in this case there are two

maps that were ro mull gaited in 1997. one of them for annual particular tick lat matter and the other one for o zone and the particulate for 24 matter which is harder to achieve. when we are asking what are the states wanting to do at the time that the new nax is promulgated. the states don't necessarily get credit for what they have done in the past. that is they can't do less than what they are supposed to do in the future simply because they have done a lot many prior years to prevent solution. but the fact that states have installed various pollution control devices or are using cleaner fuels, that may make it easier for them to prevent significant contributions to downwind nonattainment going forward. >> can i ask a question following up on justice scalia

about the statutory language and how you read it? i think most people, everybody thinks that it's better to regulate with attention to cost than to regulate without attention to cost. we have this -- our trucking association decision where we say no with standing that everybody agrees that regulating with cost is better. when congress says the opposite, we have to say the opposite. there we said congress said the opposite because it's protecting the public hale. i'm wondering what does it take in a statute to make us say look, congress has demanded that we regulate without any attention to cost. congress has demanded that the regulation occur in a fundamentally silly way? >> i mean, in the case of the nax, i think it was not the case

that requiring. p.a. to establish the nformation asksexsks without would cause a sullry yult. the air qualities were based on public health criteria. and american trucking said that of course, you can consider cost this deciding what is the most efficient and considerate way to appropriate those nax. in order to conclude the congress or consideration of cost at the implementation stage, we would have to have very clear language. and significant contribution doesn't do it. and the oh thing i would say in addition to the examples i would do it, we would use significance to's or difficult of achievement. it's worth emphasizing that this is a provision of law and it's designed to help allocate the

responsibility among different aptors in alleviating the problem. the problem is that the allocation among different actors is done state by state. and simply taking cost into account simply eliminates the requirement that each state height not be required to do re than its share of the pollution its causing down streel. it's the state by state that all congress wanted was the most efficient reduction of pollution no matter where the pollution came from. that's simply is not what the tatute says. >> we can accept the premise that each state should eliminate

no more than its share. each state should do more than its share. and yet there still may be different ways of determining what a state's fair share is. that is one way would be to determine which states have been the greatest pollutors in the past and say that the more pollution that have flowed from your borders the greatest your reduction obligation in the future. but another would say that each of the state that have shared responsibility for the problem in the past bears its fair share, we will ask each state to undertake commensurate efforts as measured by the cost threshold. for example, if it could be shown somehow that the generation of electric power inherently required the emission of some level of s.o. 2 and nox that there was no way to generate electricity through any technology tonight without emmitting that minimum amount, i

think we would certainly say with, congress didn't intend to neighbor e good prohibition generating electricity. they could determine the unavoidable component of the emissions, the part that couldn't be avoided even with the best possible pollution control technology. that would be regarded as legally insignificant. that the only legally significant contribution would be contribution that could have been avoided. now clearly e.p. a has gone one stepfather because it hasn't focused on emissions that could have been avoided at all at least without -- we're going through the generation of electric power. it has said we will treat as legally significant only the extra i crement of emissions and that comes after you've taken what we regard to be equitable and cost effective pollution. >> this is my question -- in your answer to justice cageen's

question there is a possible there's kaga's question a possible argument of cost. you don't go that far. you even stop short of that. you say that it might be difficult to apply the cost rational at the implementation stage? i think that's what you said. >> ha the court said in american trucking is that in setting the nax e.p.a. was forbidden to consider a cost not because the statute said in so many words cost can't be considered but because the criteria that was set out with what the nax had to be achieved could b be reconcile. but the court's decision although you can't consider a cost in determining what the nax will be what air qualities have to be achieved of course you can and should consider a cost in deciding what implementation measures should be used in

determining which emissions could be used. >> the e.p.a. shall prescribe minimum pollution reduction measures that have to be taken by the six. that's a quite different statute from what we have before us. d what you saying, you know, you'll reduce it this much as much as efficiency will allow or else you're in violation of the good neighbor rule. and that's a very different statue from what congress wrote. maybe it's a good idea. maybe e.p.a. ought to control all -- all efficiency measures for reducing pollution. but it's certainly not the statue that congress wrote. >> let me say three things in response to that. the first thing as i mentioned before, the good neighbor provision is addressed in the first instance to the states. that is it's the state's initial

obligation to submit an implementation that contains good neighbor provision. cost can't be considered in defining significant production the cost is not that e.p.a. can't consider that factor. the effect is that the state can't consider cost of achievement in attempting in ood faith to implement its own good neighbor provision. > i don't understand that. leeze say that again. >> e.p.a. was the one that promulgated implementation plans but that's because they did not discharge their obligation to implement state -- promulgate state implementation plans that contains good neighbor plans. but the plans is in the portion of the statute that dweels what a state plan is supposed to contain. it's not dealing -- it's not in

a provision that by its terms is addressed directly to e.p.a. in defining contribute significantly we can't take into account emission control measures. that would mean that e.p.a. can't consider that factor when it steps into the state's shoes, it would also mean that the state can't consider that factor. >> you mentioned the fact that the states didn't address the good neighbor requirement. of course, you hadn't come up with their budgets that they had to meet, at the time that they had to promulgate it. at one point you emphasized how incredibly complicated it is for states to determine how much they must reduce their emissions to take care of the fact that they significantly contributed to downwind pollution and yet you would impose on your states the burden to issue the good

neighbor program without knowing how much you expect them to meet. >> the statue that imposes its on application on the state it may help draw the court's attention to the relative provisions on page 1-a on the the nment's opening brief, relevant provision is 42 c, 74-10 and 64-10-a-1 begins with each state shall after hearings don't and submit to the administrator of the e.p.a. within three years or such shorter period as the administrator may prescribe after the promulgation of a national ambien air quality standard the naqs. if you look to the bottom of or 2-a.e top of page --

each imly hen tation shall be dropped by the state after reasonable notice and public hearing. each such plan shall and then if you look at the bottom of the page it says contain adequate provisions prohibiting consistent with the provisions o this sub chanter any source of her typeer miss activity fromer mitting any ams from contribute -- >> so if you were working from any upwind states and you were facing this deadline and e.p.a. didn't told anyone how it ntended to interpret the state policy, what would you have have told them to do? >> the methodology of using thresholds had been imbodied in i believe was promulgated in 2006 -- >> the head of state of the

e.p.a. comes to you and says how much do we have to reduce our emissions to satisfy our requirements. and you would tell them what? >> we would tell them in all honestly, we don't know yet. that's not a fatal florida you in the agent that it's inherent in any legal word of context that the first person has to act before the second person has made up his or her mind. and so -- >> but that glosses over the fact that as you say elsewhere in your brief this is a -- it's your analogy, spaghetti matrix or something. and so there's no possible way for the state to know what how much of a burden you expert them to addressed to say they have to do it in three years or we're going to take over the responseable. >> what they were going to do was more than any state was going to do because as a result

of widespread noncompliance, e.p.a. was promulgating federal implementation plans for close to 30 states and plans for different naqs. the second thing i would say -- >> i'm not sure that's right. i think e.p.a. has an easier job in dealing with it as a group. they say here, look, here are these states. there to's what you have to do. but any individual state has no idea what its particular role is going to be in your group resolution. >> they have the information available as to how much does each state contribute to the yoverpblgadge at various nonattainment receptors in the past. it's certainly true that the states wouldn't necessarily know exactly what policy judgment e.p.a. would make as to what the right cause threshold was. that's correct. i mean, it would have no idea whether e.p.a. would use any or would pick $500 or would pick -- i mean, i don't know how it

could sensibly design a program without knowing that. >> the other two points i would make are first the state's role is to devise something in this yea as in others that it believes would carry out its own legal obligation. it's not necessarily to predict just how e.p.a. would do it if the task failed to e.p.a. so when the states are undertaking a path that would produce attainment of the naqs within their own borders, they have to make a variety of policy judgments about the right mix of emissions controls, what sources would be allowed to mix in what amounts. if a particular task wouldn't do that task would fall to e.p.a. and they would not exactly match with what the e.p.a. could ultimately device. >> can you give us an example of

where the e.p.a. has done this in the past? where a crucial element of the naqs has not been defined by the agency and the agency has required to put together their six without knowing what they target is. and that's the problem here. what's your best example of another case in which the agency said, you put together a set and we're not going to tell you what the target is. >> well, the examples i would point to are in the brief file the respondent states that are on our side of the case who identified examples of instances where states did successfully comply with their good neighbor on applications and persuaded he e.p.a. that what they had done was fine. >> they pinned the tail on the donkey in the right place. that doesn't prove anything. i want an example of another instance in which e.p.a. has hidden the ball and said we're

not going to tell you ma the target is. it's up -- tell you what the target is. it's up to you to come up with the sip. and we'll tell you after the the whether that sip has right one. >> it released a dwreal of information at the time in which it was announced in the summer of 2010. the two additional things i would say that for beter or worse congress did place this obligation of the states. it definitely thought that at least in the mind run cases stays were capable of carrying out this task. and at least to the extent that don'ting a good -- a good neighbor provision requires provision of circumstances in other states. in a state this is just the flip side of what the downwind states have to do all the time. that is, if new york officials

are trying to determine when a new naqs comes out, how can we bring our own air quality into compliance? what controls do we have to place on our own sources thord to get air quality to the desired level? >> the new york officials have to take idea of the the real pollution that is likely to travel to their boarders from other states. they can't analyze emissions within their own borders. they have to consider what the likely contributions of their neighbors -- >> that just means there are some facs that they don't know. of course, there are going to be uncertainty about certain facts but here there is uncertainly about the target, not just about the fact. we don't know what target we're expected to hit. >> the final thing i would say on this part of -- this particular sub issue of the case, that even if you reach that conclusion, even if you determine that it was practically unfeasible for any

state to don't a required state implementation plan with good neighbor provisions until e.p.a. acted, then the problem situation of the opposing states still wouldn't follow. that is the statute in the provision that i pointed to says it's up to the stays in the fist month to imlyment good neighbor provisions and on the same amen statue tsh describe the if a state fails to satisfy that obligation. it the administrator shall promulgate a federaled a minutes trailings plan at any time after the administrator finds that a state has failed to make the required submission or find that the plan revision submitted by the state does not satisfy the

minimum criteria. >> it's below the government conceded that there was a they're rhettically possibility that some states could be overcontrolled. that they would be implementing measures that would reduce their contributions to pollution pollution be -- below 1%. i think there is a theoretical possibility for that but that your approach was basically fine. what would we do about that? first of all, are there measures states can take to get out of the sip if it's inropet because of overcontrol? and if not, then how do they do it? what's the process? do we vacate the

rule? what do we do? and what's our power to do it? >> if you reach the conclusion that there was a theoretical possible that it could happen and there's a problem if it did but the method ol is that there's a whole rational. the more big picture objections that are properly before it and that the cow of appeals ruled on. now, even if we win everything that's at issue in this court, the case is not over. there are a variety of more specific challenges to the details of the rule that the d.c. circuit found it unnecessary to addressle we won on the ib shoes that were before the court. the case would be remanded and an opportunity for the court below to consider those. and to the extent -- >> including the overcontrol argument? >> well, to the extent that any state -- and i don't know the

peppeding as appear plied challenge but to the extent that any state has ha properly preserved challenge to the effect that it is actually likely to be subject to overcontrol, then that could be heard by the court of appeals. they could determine if that was lickly -- likely to happen and that would render that capricious to the state. but it said the fact that e.p.a. can't absolutely rule out the possibility that it might happen, renders the rule invalue on its face. and in other portions of the opinion the court failed to the e.p.a. for failing to insure that its regime would not lead to overcontrol. i think that's an extraordinary standard for the agency to deal with. you know, it happens all the time that federal agencies are given authority to regulate to address one problem and the regulation necessarily has

spill-over effects on other onducts. it might require inspections. it might require the recall of food after one item and a shipment had shown to be contaminated. these would have spills the over effects on food that wouldn't be contaminated. of course, you could go overboard and impose a regime that was so onerous. but but nobody would ever say that it's the duty of the agency to insure that there is no other means of achieving the same health benefits at lower cost to the public. the other thing that the states could do, i mentioned that one way in which a state that believed itself to be unfairly or inappropriately treated by the rule was to pursue any

adequately preserved legal challenge it may have. and as request indicated there is a mechanism by which a state can ask to have the federal implementation plan and replaced by a plan of its own devising. so the consequence of the state's failure to achieve their good neighbor on application, that consulate was not forever barred from devicing their own plan. the consequence was that the federal implementation plan would remain in effect for a fairly limited of time subject to relacement by a state plan. >> if we were to rule against you and defer the decision below, how long do you think it would take to get a new flule place? >> i don't have an estimate on the time. but if the court afirms on the ground that e.p.a. may not consider a cause, part of the problem i think it would be an extraordinary undertaking for

the e.p.a. to try to achoo. that is part of the difficult here is that nobody has side fide a concrete alternative, that is a plan that would not consider a cost and yet that would disperse of the burdens of compliance mopping the states in for portion to their prior contributions and also would address the nonattainment problem at all of the downwind receptors. >> could you slain that to me, mr. stewart? are you saying that the strait proportionately approach are you saying that that's impossible? or are you saying it's complicated and dumb? >> we understand to be the straight approach is impossible. at is it might be possible because if one state is contributing and another four and another seven, the

proportionate solution might be that to require any necessary reduction would be in those po portions when states would do -- to the reduction. another would do .14 of a reduction. and another would do .7. with respect to another receptor the same states would be contributes in entirely different proportions and there would be no way of devising a solution that would be proportionate as to both. >> you could average an amount, couldn't you? >> you could average anment -- >> that's not as irrational as picking $500 as to who could do it moreer fishily. that's sort of arbitrary. >> the purpose is not to increase or decrease the total number.

it's to insure that it was done in the most coster fkive manner possible. >> i understand that. a prettycertainly it's arbitrary number. averaging is certainly no more arbitrary. >> i think the cost methodology is one that e.p.a. has used often in the past indeed. even before the term was added to the statute in 1990. e.p.a. was interpreted the prior reading of the statue to allow the downwind of the state. and it interpreted that standard as allowing both. the ironic thing about this case is that the only consequence of any control is cost. that is this is not a situation in which there is some distinct public health benefit --

problem, i'm sorry, that is used if power plants are knox. ng if it cost more money, it seems strange that e.p.a. can't take crot of cost in resolving a solution. >> i don't want to finish your argument. if you have something to say. you started out with in describing the plan. you said there are three aspects. the first aspect was you cout cut out any state that's contributing for man 1%. you used a the trick. you apply that. the state's still in. and then you say there were three. i want to be sure you get the three. >> the third part of the process is that once each state's sub higs budget has been quantity fide, the e.p.a. essentially

divide up the emissions that are allowed among the different power plants within the stay's orders. and the way that it does that is it gives allowances to the various power plants that add up to the know tall number of tons of pollutants that are allows to be admitted. it's important to emphasize that the states have not joined the industry's argument. states are notse quarreling by the me tholology in which e.p.a. budges. those states are simply saying once they were quantity tied, they should have been given an opportunity on their own. in some situations that might have been a rational way for e.p.a. to proceed. >> the once e. particular as a

state has disapproved. the good neighbor -- once that happens the e.p.a., at any time within two years can pro-pull gait its federal -- it height be rational to wait the first two years in order to give them every opportunity to devise compliant plans. >> the mandate a north which said fete something in place that works as soon as possible and e.p.a. felt constrained by that to act as quickly as it could. and the second point worth emphasizing is there are state srches. it's true that by devising the -- am plan, especially ah

to decide how emissions should be allocated among their own sources. but the downwind states should comply they can want get relief from the upwind states. >> after reading all this, if we verse the d. crfment circuit what would happen going forward? the e.p.a. does its fit. but that's not the owned the game, -- end of the game. sn't the e.p.a. >> the states it's unclear to what they've been working on. but the state certainly could. proposed state implementation plans to replace the fifth.

it's to be contemplated but there will be additional knacks. in which the state and the e.p.a. went about the business to futurening how old naqs. >> thank you, council member. >> why tonight you give us 0 econd or so?

>> mr. mitchell? >> mr. chief justice and may it leeze the court. >> e.p.a. cannot impose a good neighbor fib on the states when e.p.a. has left the stays completely in the dark. the 's approach requires tates to guess under section 72-1082-d. >> it's certainly hard. but it is what the statute says. and it seems to me that if e.p.a. had taken a different view it would have been contrary

to the statue. >> e.p.a.'s action in the case are the an arbitrary and capricious change. for 15 years starting the nox sip call, e.p.a. told the state not to submit good neighbor sips before the e.p.a. quantity fide the op application. and e.p.a. repeated that stance several times. and aw it on page 9 and 59 lso on pages 51, 52, and 56. e.p.a. has done a 180 shift and they have told the states that they are required to submit good steps under sub section 8 -- >> they don't know exactly how to do it. it is a tough problem. it sounds like you're making a procedural objection here to

which the government's point was you're right, we'd all been talking about this. what wanted to see ha the states came up with. so we looked. the states haven't come up with enough in our opinion. and so now we go of the federal process and with put out our thing. and you comment on that. and then if you feel that their thing is no good, propose your own solutions again. but it's supposed to advance the ball. so there's a procedure for states to come in if they can come up with a better plan. that's what you've just heard. and so do it. >> so what's arbitrary or capricious about such a system? >> because that's the approach the e.p.a. rejected -- >> well, they octobered it understand -- once. people changed their mind about how their problems are best solved. so if you're only point is one

they did it a different way, they'll say you say what's unreasonable trying to getting the job done. if their going to do that they have to acknowledge in the transport rule that they're abanding the prior construction of the plan. >> yours, yours. >> the labor board decided things in aadjudication. > rules. >> anything the law prevent that? >> no, the oar by trare -- kissing amount is what they were being told. >> you can counter is what the government is saying. and so it's not clear to me that they stopped you from doing your own. >> we can pose after the 15th have has been opposed. you ve a counter sip and

do get out in terms of what's wrong with you. fundamental about thisings are you challenging the trance porses rule using cost or are you just challenging the process in which that was achieved. because if i understand the high grades and the theory of this, not even you would be contribute control regulation. is that correct? >> we do not have a position in the question about whether or not they would need a cost. for system of them it would really be a bad idea. >> there's simply no consensus among the stays in that question. so we are remaining agnostic on hat point.

>> let me ask, until you propose your sip to replace the fib remains in effect? >> yes. and you're bound by that until they approve your own sip. how long does that transaction take in the past? >> that depend. do you think that's a quick process? we'll have to develop a new accept. and that shift is submitted to e.p.a. and they chief on it for as long athey want. we're still waiting for e.p.a. to decide to implement the good neighborhood opably gation. at least if you department the accept or ro pose the sip, you've given reasons. you have a rational plan and the e.p.a. must give a reason

response to it. it seems to me that in some respects the e.a is more onstrainted to this process in and there are several reasons. the first is that e.p.a. has hanged its imter pretation oren's state states. wither don't want you you to submit good neighbor that was just simply a guest. the statue doesn't require you to d that. pause information by them the statue doesn't wire rue to do it. statue don'ting of

that. >> e.p.a. and only evidenta is charmed with quantifying the stay's obligation. we wanted to do the provoke active to decide what do good neighbor obligations mean. you need to wait until with will continue fy that opably gation. e.p.a. has changed the approach without acknolinging their trance or the rules. i thought that was them ditting. they had to quan quantify. hey have to continue tie the gibed neighborhood on application. and that leads to a second stature problem. the states have that por rug -- ve to do what the and to

requires the state when they submit or propose ses and they have to take a wild guess is what they're good neighbor to overcontrol and overregulate because if they want e.p.a. to approve the state and they don't know what their good neighbor onably gayses will be. overcontrol and overregulate. or risk that the e.p.a. will deny that. what the e.p.a. is naturally will do only what the federal flow goes to fire. rather than giving the state the opportunity to distribute regulatory a pums. is goes whack to the chief

just tiss' question. the state gets threees to make its best pitch. and the administrator showed she has a fist. there are lots of conversations that can happen between the e.p.a. and the states. and make more of to conversations happen. thress of -- addresses the statue. do it within author years. the e.p.a. just has very substation nal discreppings as to what kind of sirgses. it's in that broad structure. >> i agree with the especially ah has that discreation, the roblem is that in a non19967 scandal, they have the authority

which is the good neighbor provision of the clean eva. and they said that e.p.a. is the constitution institution. the state what contribute to this phrase means. it's an empty require. they could have told the states. you can take the first crack at defining what it means. and we'll agree and approve it or disapprove it. once e.p.a. asserts that exclusivive authority over the ovision the states have no when they submit. and that leads to a second .problem with e.p.a.'s transport role because e.p.a. had no authority to impose federal implementation plans for the 1997 standards.

on the 22 states that already sips -- . approved >> seven states already challenged that mission. whoa why should we be looking at the state here. >> three of the states have challenged. >> i don't know why the rest do it. why should we enter the frey isn't that an issue we should ait and see. because the states could have earlier, the earlier this is if they've already approved some accepts. three states have challenged the facthat there shouldn't be required to meet a new standards because he already had an old standard approve.

hat seems to me a very discrete. >> i don't know why because hat's a dwircht issue. to finish before we venture into this question. that's my point >> i don't think the courts are right. the arguments we are making is that, first, epa has no authority on the states before applying the good neighbor. epa improperly invoking the corrections power. >> that is because epa did it that way. you don't get there from the statute. you get it from what did in the first. is that right? >> we are not relying solely on the statute. that's correct. it has changed its

interpretation of the statute without additively acknowledging or splaying how its new interpretation is consistent with the statute. that we are also relying on the statute as well. as i mentioned earlier, a to d contribute significantly to another state an attainment. >> they may not know you -- they may not know. applyare six states that to the seven-state solution. it depends on how much they contribute. it depends on what the other states will do. it depends on where the wind blows and that changes all the time. so they have a tough problem. they can't you exactly how much you should cut back until they know what they have in mind or what others have in mind for solving the problem. so it sounds to me as if you're asking them to do the impossible and they have a very good reason for not doing what they did

before, namely, it would be impossible here -- or not actually impossible, but very tough and very expensive. so that is why i gather they went to -- they went the way they did. i don't see anything in the law that tells them that this statute would force them to proceed in a way that would be either hugely more expensive and perhaps more -- perhaps impossible. what is your reaction? this before.ne when that quantified the states good neighbor obligation, they gave an opportunity to submit steps before they care implementation plans would take effect. epa agrees that the states have no ability to yes accurately on how -- ability to guess accurately -- >> they have the transport role. that would come out sooner or later, right? the only question is whether it should have come out before the

states were obliged to submit their sips. have asserted that prerogative. they can choose any reasonable interpretation of that phase. >> you started to give us a second statutory reason. i was really eager to see what that was. 72yes, that is the section -- 77 for kate sipped. -- epa pierceusly lee approved sips for 22 states that implemented the 1997 standards. once the epa approves a states seip. problem for those 22 states. how would they be able to impose them. they would impose the corrections power and k-6 says that, if epa determines that a prior decision approving a sip

was an error -- >> is in not the case that three states are questioning the issue below, whether the epa can call this a corrective action? that is being determined as proceedings? >> the proceedings have been stayed. but yes, kansas, georgia and ohio. will you finish describing the issue. my know we didn't all hear it. >> epa and the disk corrections power. a correction must -- epa invoked its corrections power. the approval of earlier sips went through notable comment. the corrections here did not go through notice and comment.

if the united states tries to get out of this problem by saying they can use the good clause exception in rulemaking found in the administrative procedure act, that doesn't help epa at all. the requirement comes not from the administrative procedure act. epa to rely onl a statute when the statute providing that step is not the statute imposing the requirement her. >> why couldn't we read that language to essentially mean such as to the same procedural requirements as the original? caveat does not appear in case six. >> is not a caveat. it is a different understanding of what that language means. in the exact same way they acted come a could

mean subject to the same exact pursuit drill requirement. was i not clear? it might not have been clear. >> i think your suggestion is that epa could rely on the residualministrative act -- >> whatever the procedural requirement constraint epa when arepproved the sip, those the same procedural requirements that constraint epa when it disapproved the sip. we are just asking -- both have to be subject to the same procedural requirement. epa can acted differently as long as they are acting within that same set of rules. >> we don't think that is a of k-6.assignment if the decision made correction,

the fractions have to go through notice and comment as well. if the decision went through formal adjudication, then the correction also has to go through formal adjudication. are they just trying to say that the good clause exception in the eight -- in the apa should carry over here? makethink they are trent that argument. they are saying, in the initial version, we could have -- i think they are trying to make that argument. they are saying, in the initial version, we could have made that reversal determination. >> it doesn't constrain agency much at all. >> i think it would follow, if you did it for good cause to apply the rule, to do it for a good cause to abolish it. not that you can do by rulemaking when you adopt it and then used good cause when you abolish it, right? it seemed to me to square with

the text. the samext says in manner as. in the same manner. it is looking back at the original decision and how it was made. it is the second we provided that the -- there is also the question on whether the sips can be severed. has expired. >> you can finish your sentence. require an alpha severability question. thank you. >> thank you, mr. mitchell. >> the private party respondents are focused on statutory limitations to the epa's authority under the good neighbor provision and i would like to begin by addressing the issue that my friend from the government vocalist on a lot,

which is the use of cost and focused ongovernment a lot, which is the use of cost and explain. the text of the statute which authorizes the prohibition only of amounts that contributes a new family to entertainment to interfere with maintenance in downwind locations. epa has asserted that it has the power to increase a states reduction obligations beyond what a focus on the effect of its missions would require simply because epa has decided that it would be reasonably affordable for that state to very higher burden. what that means is that states making only a slight conservation to air were -- air quality problems in downward states are required to make very substantial reductions come in many cases far more than --

reductions, in many cases far more than those making higher contributions. there's no correlation at all under the epa's methodology to join the amount the state contributes in the amount it has to reduce. because entire driver is cost. it is not one component. it is the entire driver. focus on your argument here in the brief hearing very clear and very good. the example that comes to my mind is that we have in overgrazing problem in state aid. -- in state a. cows come in from state b. c. sheep come in from state they are not friends. [laughter] it turns out that epa, which is in charge of preventing the overgrazing, discovers that, if of the sheep men build a fence,

that would solve the problem. even though they only contribute half or maybe less. it equally,divide you we check to cause half a problem because that seems fair. it will end up that the people in state a with the cows will starve to death. so our choice is between taking states, each of whom cause half the problem, and getting an overall plan where you solve the problem at minimal cost or just dividing a 50/50, which seems fair in mathematics. but it leads to starvation, cost, and death itself. each statet treating alike. you are right. and the reason is that they know, one, all the states are partly responsible in more than 1%.

and through this plan, we get the job done at much lower cost. now where it in the statute doesn't say they can't do that? >> i will try to respond to that hearing certainly -- to that. certainly, it is the case that there will always be legitimate policy arguments about the least cost and most efficient solution to any problem. but we would also say that there are are countervailing policy problems here and we do believe the statute sides with those countervailing policy arguments. those are focused on the fact that in your hypothetical where there is one stated that it would cost more to reduce and another student -- and another state would cost less. cost morethat would to reduce is in fact contribute a lot more to the downward states air problem than the other states. for several reasons, when a

statute looks at that issue and asks the question over whether epa should have the authority to force the state which is in fact contributing less to nonetheless reduce more simply because it is costly, we think there are at least three reasons why the statute embodies the policy choice that says, no, the state that produces more reduces more and the one that produces less reduces less. the second is the whole structure -- >> significantly attributes. it is amounts. not conducts synthetically. >> and i don't think significantly can bear the weight that mr. stewart faces on it. it modifies award to nonattainment. it is about the degree of causal contribution. and it doesn't modify the maintenance. they use the same cost methodology to implement that as well.

but beyond the text, the whole structure of the clean air act is focused on treating states as separate entities which are responsible for the omissions that happen within their borders and the effect that those emissions have on other states. sit is why this is in a rather than some other epa regulation. the amounts of the emissions within a state. tellings regard, it is that with the government said is that it believes it has kind of the authority to consider cost, that would be considered by a chancellor at equity in a nuisance case. they have party defendants before him or her. of course, they were allocating on the basis of equity and efficiency in all the kinds of things that a common-law chancellor can't take into account. the epa has before it separate states, separate response abilities who have a lot historic role and responsibility of enforcing emissions controls

within their border. and they could have rightly or reasonably concluded that they do no one epa to have the same authority to shift costs and efficiency and equity around different states. >> you remember my cow and sheep up preciselyo make the disproportion you're talking about. keep that in mind. i found that a helpful example. find in is did you congress -- and i am interested in legislative history -- did you find anything in the legislative history that where the epa faces this kind of regional problem -- and this is a regional problem, not just a statewide problem -- that they had an answer or a glimmer of an answer as opposed to taking this language which is pretty open and saying we are going to leave it there? we don't know. we don't have a clue. the epa is there to figure this thing out and we are giving them

the broad authority here. cuts on anything that your side as opposed to the other side of reading this language? >> i think there's one thing i can cite, your honor. the statutory history in this case is that the predecessor version to what we currently have before us simply said that states were required to prohibit the amounts which prevent attainment remains. prevent attainment or maintenance. no word significantly. in 1990, it added the word significantly contribute to nonattainment and interfere with thatenance, it was doing precisely because it recognized that this was a provision that addressed causation of bad air quality effects and what it was doing was not introducing some new element of cost but relaxing the causation standard. it is enough if it contributes

significantly to nonattainment. >> you have a statute here that clearly does not have any ,anguage about no costs allowed that also does not have what the american trucking association statute had, which is like public health only sufficient margin of safety, right? so none of that. you have a statute that focuses on causal contribution, right? this is a hard problem, right, because -- let me just would've give you a numerical example, which i'm sure is as simple as together the other numerical examples floating around this case. -- is as simplistic as the other numerical examples floating around this case. there are two states, x and y coming each compete -- each contribute 20. we only need 20 of those. we have 40. the question is how do you get from those 40 to those 20?

the d c circuit would say we take 10 from each. but if the question is only about causal contribution and that is all that the statute talks about, there has to be other ways we can make that determination of what contribution each should be legally responsible for, right? and what the epa said here said was we are going to distinguish between states that have put a lot of technology and a lot of money into this already. and on the other hand, states that have a lot of cheap energy emissions. and why isn't that a perfectly rational thing to do under this very statute? think in thell, i example that your honor gave where you have the two states and should each be reduced to 10, the reason in favor of doing it that way from a statutory perspective is that it then gives assistant application to the same causal language in the

statute. that means the same causal effect from one state on the downward state is significant it becomes from indiana to delaware, but insignificant it becomes from tennessee. and the statute says that it must significantly contribute, the more they contribute, the more they reduce. we see that fitting much more securely within the statutory language than the kind of shifting that your honor mentioned. certainly, one can imagine, since the policy rationale that are behind your honor's question are certainly legitimate and more than possible, certainly one can imagine a statute economist could have said treated as a national playing field. think about what is the most efficient way to force reductions on downward locations and impose those on the states. surely, if that is what commas had intended, it wouldn't have written a statute which direction each state -- if that is what congress had intended,

it wouldn't have written a statute restricted each state -- carry mr. stewart's point, if they could not feasibly reduce her contributions. >> yes, your honor. >> so they couldn't feasibly do it. doesn't the word significantly contribute have to take into account in some way the cost of reducing the amount? >> i am here on behalf of industry and labor. certainly, we believe there has to be mechanisms to deal with the kind of problems that your honor just identified. but we don't think they come out of defining the amounts that significantly can should be to nonattainment. we think that those kinds of considerations come into place elsewhere -- into play elsewhere in the process. the court says that when states are implementing, the

requirements of the eta -- for example, by deciding to allocate among different sources how the reduction will be distributed, they can take cost into account. and there are other mechanisms in the sip process. anis then translated into emissions reduction of addition. we have noted them in note 17 of our brief where this gate -- where the state says, this is the met would have to reduce but we will do it in this way because costs have to be taken into account. but that is a very different matter from saying that epa come in defining what significantly contributes is the same thing. the box that we are locating it in makes clear that it functions as a kind of break your honor described, some thing that was unfeasible or economic. >> states found a way to do that with the cost trade-off with the cap and trade system. because the industry itself can

make that choice. stopping a sip that stops a state from participating. anywhereport trade appropriate. but this is a statute that is focused on providing relief to downwind states. consuming is emissions into delaware that credits air quality, does no indiana purchases allowances from tennessee who is not contributing to air quality. >> look at what i would have to write if i made it very specific. two units float over the air from the cows. two units for the air from the sheep state. it happens that, if we treat them alike to my we are going to tell the cow take -- the cow state your unit is the same as the sheep states unit. they both make the same significant contribution and we have to say that, even if, for

you to admit your unit causes death and destruction, destroys your economy. and i have to write those words to accept your argument. i would like to resist the role, your honor, as the defender of death and distraction. [laughter] >> you will either have to dry distinction or other. when you get down to the level of making these things can meet can take into account whether death and destruction and starvation will be taken up -- when a state is doing that part of the sip process. but that does not bear on the amount of significant contribution is defined. because when epa takes cost into account, it is not simply preventing the death and distraction and starvation. it is working the other way, too. the causation standard would

only make you reduce this much. we, the epa, can shift to you an additional burden because we think another state has already -- >> we say that is not a theoretical possibility. ofwhy isn't this taking care in the process that permits individual states to challenge this? >> let me make a distinction in that regard. what the government says is a theoretical possibility is something whether the state would be germ below the 1% threshold. the state would be driven below the 1% rush holt. threshold. >> you are saying that significant must mean only measurable amounts. it can't mean -- to pick your word -- feasibility,

culpability, accountability. one state finds a quite feasible from a cost standpoint to reduce emissions by a factor of 10. can'ther state finds it do it except in a factor a hundred. wouldn't you say that the contribution of one case is more significant than the other they stunt his ability? -- then the other based on feasibility? word is not attainment but the word amount. >> we agree, your honor. significantlyd doesn't court a judgmental component.

>> is not a limitless best >> i don't think significantly means that any factor that might be gained relevance in a policy would be brought in. i think the statute here that talks about amounts that contribute significantly to nonattainment or maintenance. >> epping there is an ambiguity here. -- i think there is an ambiguity here. i think justice scalia's point might be that an amount is an amount in >> that is my point exactly. [laughter] and then the response is, well, not always because you say an amount, you are talking about a specific amount coming out of cow one asnd is the significant as the sheep on? i think you have hit the nail as to what the issue is. >> i think significant may have

a range of meanings but not a limitless range of meanings. ist because you love ambiguous, it doesn't mean it's purple. in the context of this provision,, dates of the government's provision -- >> the danger of this problem is that there is an outpatient issue. it is not just that everyone gets down to a certain threshold level. there is a level and would have to allocate to the question is what are we going to allocate on the basis of? and the word amounts doesn't tell you what you're going to allocate on the basis of your so there are lot -- aces of. so there are lots of different choices. we just divide and it all proportionally. he can take into account per capita. we can take it into account the state population if i wanted to. or we can take into account, as the epa did here, cost, understanding that cost reflects how much of an investment the state has party made in pollution technology. neither the shoot,

word amount or anything, says so theg about -- statute, neither the word amount or anything, says anything about allocation. >> it is the entire phrase. i do think that 10 out of 10 people who hadn't read the clean air act and they sat down and were asked what it meant, i don't think this is any more statute inhan the american trekkie was. -- american trucking was. that content isn't cost. it is the quality air affect standard. >> do you have an answer to mr. stewart's basketball hypothetical? whatu ask a coach contributed to the loss, he will going -- you will mention the

missed layup, not the missed desperation amount. [laughter] >> it is really hard for me to convey the amount on the basketball court. i would accept the notion that, if bill gates and i each contributed $100 to eight today, i made a more significant contribution. but that is because we are using contribution in the context to mean something else. >> but the basketball thing, to make it parallel to what is at issue is year, you should ask is -- you lost 101-100. which of the 101 points contributed most to your loss? [laughter] -- assuming the

answer that one did. it was the layup gav. >> if there were different teams playing in the league and you had an overall result, you could actually determine which team had contributed what to the overall result, and when we are dealing with states, we are dealing with groups that the statute conceptualizes a separate teams in total to be treated separately. completelysed a separate argument. the first argument in our brief, which is independent of how the court decides epa may define the amount it contributes whether cost our air quality effects or anything else. that is that however it is defined, epa cannot regulate beyond the point necessary to achieve attainment or maintenance in downwind locations.

rulemaking it specifically said it examined the issue and avoided overkill. here he didn't say that because it didn't do that. apart from the air quality issue, we had commenters that submitted evidence that showed that epa could achieve maintenance at virtually the response toe epa that was they were not going to look at lower levels of regulation because that lower levels of regulation, some sources in some states might cease operating system controls, and that's all they said. couldurces in some states cease operating existing controls, and as the commentor said he would still achieve attainment and maintenance of all to download locations, and the epa has no authority to require those sources to continue operating their existing controls. there may be authority under other provisions, but not this one. the epa in this particular

proceeding said nothing else, gave no other reason for refusing to act on the evidence that the commentor submitted that lower levels of regulation would still achieve attainment and maintenance at downwind locations and they had no authority to regulate he on necessary to reach -- achieve attainment and maintenance. >> thank you, counsel. mr. stewart, you have four minutes remaining. >> thank you, mr. chief justice. in our reply brief we cited the statement as if there is a common law of nuisance. not --clean air act did had not been enacted, the rimini that states would have in a situation like this would be a federal common law nuisance against upwind states are polluters in upwind states. there are three lessons to draw from that fact eerie the first is that as the argument

indicates, judicial resolution of such a suit would have been a herculean task and the prospect of doing that fruit traditional processes should reinforce the wisdom of congress's choice to replace that with the clean air act. of council is in favor deference to the expert agency that has been placed in a position that a, law court previously would have been placed in. as itcond is that indicates, the common law court in that scenario would have been able to consider the cost necessary in deciding whether a particular remedy would be appropriate or how much of an adjustment they would have to make. the third thing is as the analogy to the common lawsuit indicates, there are sovereign state interest on both sides of this case. this is not a matter of epa versus the states, it is a matter of epa trying to act as

an honest broker between the upwind and the downwind states. the next thing i would say about the clean air act is that the statute as a whole is replete with references to economic activity and harnessing -- both the states and epa are specifically authorized to provide for the trading of allowances, the whole purpose of which is to achieve in mission reductions in the most cost- effective manner possible. i think his work noting in this regard that although we talk about the transport rule as regulating the emission of states, what we are really regulating is emissions of power plants within the states, the good neighbor provision itself talks about contribution from sources or emissions activity within the states. one of the things epa said in the proposed rule was that in some circumstances the cumulative downwind impact of a particular upwind state might be

great not because any particular power plant was poorly regulated or emitting at a high level, but because there were so many power plants in the same state. one consequence of forbidding the epa to consider cost is that a particular power plant in upwind state might be required to install more expensive dilution control measures and may greater reduction simply because they happen to be located in a state with a lot of other power plants. is,last thing i would say the statute as i've said before has a perspective focus and it is intended to be a permitted by state officials. if you ask how would a state official feel confident that her owns eight of limitation plan was satisfied when she wasn't really sure what other states might be doing? one way is if a state official said if everybody else did what i'm doing, i can feel confident the problem would be solved. that is really the approach the

epa used. it certain cost thresholds and particular thresholds we would feel comfortable if everyone makes pollution control efforts at these efforts am of the problem would be solved or at least almost solve because there would still be slight residual nonattainment. it seems personally rash -- earth of the rational bull -- seems perfectly rational if if it was aered to plot across the board would solve the problem. >> the cases submitted. >> on the next washington journal, former mitt romney speech writer talks about the strengths and weaknesses of american conservatism. after that, jennifer lawless of american universities discusses the impact of women in politics. less your e-mail, phone calls

eets.wea >> about 10 or 15 years ago we started looking at the census department data and something very strange pops out. when you look at where the profits are, if you look at a map of europe tom you see germany, france, ireland, italy, but if you look at the data on -- it is a hugely disproportionate amount of profit was in ireland. that was one indication that something was going on. a more with marty sullivan, sunday night at 8:00 on q&a.

>> next, charlie cook talks about what he expects in the coming months leading up to the election. he spoke at american university's campaign management institute in washington dc. decided. >> good morning. welcome to the campaign management ininstitute at american university. i'm candy nelson. director at cmi this is the 30 fifth year cmi has existed. we started as a bipartisan training institute and we've been going strong ever since. our first speaker today is charlie cook. charlie is the editor and publisher of "the cook political report" which he founded 30 years ago. >> 30 years ago in april. >> oh. charlie is also political analyst for "national journal." a regular election night contributor to cnn, cbs and nbc.

always very generous with his time for cmi. he will start off this morning talking about general political environment going into 2014. so, charlie cook. >> thank you. [applause] thank you, candy. first of all i want to compliment all of you for your decision to participate in cmi because hardly a month goes by that i don't run into somebody somewhere that didn't say, i met you, or i first heard you at the american university campaign management institute and i've been doing this for really long time. i remember my favorite story about the cmi was back in the, either very late '80s or probably early '90s. a friend of mine. leland: bill sweeney was helping to run the program. and this was march, april, may, few months after the cmi and he

was walking through the capitol building and he ran into the speaker of the house, tom foley, who he knew. and speaker foley put him aside and said, bill, a few months ago, back over the holidays, my father was very ill, so i was spending a lot of time with him. there was one night i couldn't sleep so i turned on television and started watching c-span and campaign management institute was on. then speaker of the house goes through to critique each of the speakers. just goes to show you never know who is going to be watching this kind of thing on c-span and also just what kind of terrific program that amu puts together. what i am going to do is sort of talk about the lay of the land, the political environment. thank you very much. and i used to, a million years ago, back in the '70s when i first got out of college and working in politics there was a

terrific political newsletter called the american political report that a guy named kevin phillips did who had been a political strategist for president nixon in '68. this newsletter was eight or 10 pages long, 12 pages long, every other week. the front part of it was sort of macro big picture themes of american politics and the last couple of pages was the alabama to wyoming, what is going on in each state. i was just out of college and so, to me i would go straight to the back pages, you know, alabama, arkansas, go through all the states to see what was going on and then i would read the frond part because i thought to me that was like cocktail party conversation. it was sort of vaguely interesting but not that important. but as i sort of my career progressed i started realizing, wait a minute, it is the stuff in front that drives what's happening in the back and i think as sort of as i moved along the thematics are awfully,

awfully important. so i think a lot of people, particularly younger people think we put too much emphasis on some of the big picture stuff but over time it seems to matter in a enormous amount. at the beginning of each election cycle i start off and think about, ask myself two questions and the first question is, what kind of election is this going to be? and whether it is sort of what i call micro or macro. around the second is, what's the election going to be about? let's talk about these two questions. what kind of election it's going to be. the late democratic speaker of the house tip o'neill coined probably the most popular phrase in american politics. all politics is local. now to me what speaker o'neill meant, whether you're looking at a state representative or state senate race or a state, coon aggressional race, senator's race. governor's race, every

jurisdiction, every race is largely independent. what's the population like in that area? what are the voting patterns and voting history? who are the candidates? what kind of campaigns do they have. what resources money and otherwise do they have. what are local issues and circumstance that could influence that race? but the idea that each one of these contests are sort of stovepiped is the current phrase we use, french freestanding independent of all the others. a lot of elections really are like that but there are a lot that aren't and from time to time we have these sort of, a lot of people call wave elections, where all politics isn't local and it's where there, almost like there is an invisible hand that sort of pushing up or forward the candidates of one party and pulling down the candidates of the other and you can go back

through history, you know, 1958, 1966, '64, six at this six, '80, '74. now it used to be a little over one a decade. they're happening more freakily because our political process is not parliamentary but seems to get more parliamentary than it used to be. people are not splitting their tickets as much as they did back when i was in school. it used to be fairly routine for someone to vote, democratic for the house, republican for senate, democrat for president or mix those any way you want but move back and forth, sort of choosing back and forth between the two. that was quite common but now we don't have those anymore. we had bonn a long time without a really big one. then in 1994 we had the newt gingrich-led republican tidal wave election during

president clinton's first term election. that swept speaker foley out of office. and, then you had '94, as i said, '94, getting over a chest cold. '94. then had '86 was a big democratic one. 2006, rather, 2010 was a big republican one. where we had these wave elections from time to time and so, whether is it going to be a micro, all politics local kind of election, or is it going to be macro, one of these sort of wave elections that strongly advantages one side or the other. the other question is, what's the theme of the election? there's a famous thing of winston how much hill where he apparently reportedly sent back dessert to the kitchen and said to the waitress, you know, madam, take this pudding away, it has no theme.

so the question is sort of what's the theme of the election? what's it about? what are the key dynamic that's out there? sort of what's the current term people use is narrative. what is the narrative of this election? and, so at the beginning of this election cycle, a year ago, i started thinking, okay, there are sort of two possible narratives in this election. and the first narrative, this is in no particular order. but the first one is, that republican brand image problems and internal problems just continue. and the problems that the republican party's currently facing with younger voters, with minority voters, with moderate voters, with women voters just sort of persist and flow as they did in 2012, on into 2014. the other theory is that this is a classic second term midterm election in which the party in

the white house traditionally gets absolutely hammered in the midterm election halfway through a second term. and it's not, doesn't always happen but it's almost always happens. and so which of these two is it going to be? let's talk about each one for a second. talk about the republican brand image problems. i don't know, if i need to dwell too much about this, got talked about a lot coming out of 2012 the republican party has profound -- you can blame mitt romney for the, his loss in his campaign and to be honest i think that was actually a very, very winnable race had it been run somewhat differently, that the obama campaign was very, very smart campaign and made a lot of very smart decisions and the romney campaign not so much. but notwithstanding that, when you sort of look at other races and look broader, you can see there is just some huge problems facing the republican party.

first minority voters when african-americans make up 13% of the electorate and your presidential candidate loses 87 points, 93-6, that is pretty bad. when hispanics make up 10% of the vote and romney lost by 44 points, 71-27. but the group that i kind of like to point to is sort of making a statement is a smaller group, asian voters which make up 3% of the electorate. now, let's do some, don't worry i'm not boeing to say anything bad. let's do some profiling here. what are the stereotypes of asians, asian-americans? hard-working, entrepreneurial, capitalistic. they have a lower unemployment rate than whites. they have a higher household income than whites. tend to be cult rattily

conservative. wouldn't that kind of describe republicans. attributes one attribute to the republican party. yet romney lost the asian vote by 47 percentage points, three points more than he lost the the hispanic vote. that is really interesting to me. the vote for confess is almost identical. you say, wait a minute, nobody was talking about asian vote. how did that, the thing about it is, when you look at the polling, when you sit through focus groups with voters, the message that minority voters across the board are getting is the republican party doesn't like anybody that doesn't look like themselves. is that a fair characterization of all republicans? no, i don't think it is but that is the message that so many minority voters are getting and, and i think to me, what is happening with the asian vote is

particularly symptommic of it. that has a lot less to do with immigration or anything else, is that republicans have an enormous problem with minority voters. and country is getting more and more, and more diverse. that romney won the 59% of the white vote in this last election. historically, if you got 59% of the site vote, you're republican and you got 59% of the site vote, you have just won the election. but that but it is no longer sufficient. and what we're seeing is the share of the white vote has been dropping, basically 15 points over six elections. so that simply winning the white, for republican winning white vote big is not enough to win anymore. and when republicans have to kind of go back and go back and look at their recipe a little bit because that is not working so well. then you look at young voters. and take voters under 30.

romney lost the 18 to 29-year-olds by 23 percentage points. if you look at four age brackets of exit poll. you draw a line at 45 years of age. voters for the most part over 45 vote pretty strongly for, for republicans, for congress an for romney and under 45 voted more for obama and for democrats. at the extremes of those age groups it's, it is even higher. now but the thing about it is, you can look at that say, well, okay, they kind of balance each other off or something. and maybe a little bit. but the thing is, when you think about the long haul, and, i just turned 60. so i can actually say this without getting into trouble. but, when i look at voters under 45, particularly under 30, i see the future. i mean that's where, that is

where american politics is going to be down the road a little bit. for those of us who are over 60, we're kind of the prelaugh dead. and, republicans are doing really, really well with the pre-dead and not so well with the future. if i were an old republican i wouldn't care. but if i were a young republican i would be really, really worried. something will change or they will not be winning many statewide or national elections. of. we get to women voters. we started hearing about a gender gap back in the reagan administration, the '80s. and i remember initially i thought, well, you know, this is kind of a glass half empty, half full kind of thing. do republicans have a problem with women vetvoters? yes. but do democrats have a problem with male voters? yes. so it kind canceled each other out. there are two problems with that notion.

number one, unfortunately from my personal perspective, women live longer than men do. as a result they're 53% of the electorate and guys are only 47% of the electorate. when you have such strong, you know, strong partisan voting patterns among the two genders that is kind after problem. but the other thing is, that democrats are doing a lot better among women than republicans are among men. this is true for congress and it was true for, in the presidential race that obama won the woman's vote by 11 percentage points and romney only one the male vote by seven percentage points. from a republican perspective, republicans are winning a smaller slice of the smaller pie. and again over the long haul that doesn't really work so well. then finally, self-described moderate voters.

now, i used to completely assess independent voters, self-described independents, people that didn't call themselves democrats or republicans. the reason i used to obsess over that, you look over time, and basically 90% plus percent of all the people who call themselves democrats, vote for democratic candidates for congress and president and 90 plus percent of self-described republicans vote for the republican candidate. and so pretty predictable. so, you look at independents. well, the problem with independents, the problem with that is that independents are not splitting, the independents are becoming a bigger and bigger role and so but, for republicans they, if you told me two years ago, three years ago, that mitt romney was going to be the republican nominee and he would win the independent vote by five

percentage points, i would have assumed he won the election, you know. all other things being equal. but, what's happened is that the makeup of independents has changed a little bit and another group has become more important and when i say the makeup of independents, has changed somewhat, i think that within the realm of self-described independents you've got one group of people in there that used to be republicans. they are very conservative but they now call themselves independents and are more sympathetic with the tea party movement and so they no longer identify as republicans but in a two-way democrat republican race you can pretty much bet on them going republican. the second thing is, i think there are some moderate republicans, people that were moderate republicans who have no longer call themselves republicans and call themselves

independents but they are still more conservative than they are liberal but they have more leanings that way. but anyway romney won among independent vote by five percentage votes but lost the election by what, 2.8 percentage points. so what is the key group? i would argue the key group that i'm play paying more attention to is self-described moderates. republicans or conservatives i should say taken solace more americans consider themselves conservative than liberals. 35% conservative, 25% liberal a 10 point gap but 40% call themselves independents. in this last election it, was actually 41% in the last election. independents voted for obama by 15 percentage points, 56-41. so if that's a group, you know, if democrats are winning among liberals and republicans winning among conservatives even though there are a lot more conservatives than liberals, if

democrats are winning moderates, 41% of the electorate, by 15 percentage points that makes a huge, huge, huge, difference and it didn't used to be that wide. and so we sort of look at these things and say, can republicans in 2014, repair their damage? wait until the end. repair their damage with, minority voters, young voters, women voters, moderate voters. and that is to me, that's a critical, critical, critical question. then we get to the second question. and that is, is this going to be a traditional second term midterm election? now, one of the things we've seen, and since end of world war --, first of all midterm elections tend to be much more often than not are bad for the party in the white house. and it is sort of, if people are unhappy for any reason, they tend to take it out on the president's party. if they're happy, they vote on some other issue but if they're

unhappy, they tend to take it out on a president's party. just sort of, it is what it is but it's been like that for, you know, since the beginning of time pretty much. but in the post-world war ii era, in terms of looking at second midterm elections. we've had six of them. five out of six the party in the white house got absolutely hammered in the second term midterm election with enormous losses in either the house or senate or usually both. and one exception, the one out of six that didn't happen was back in 1998. bill clinton's second term midterm election when there was a backlash against the republican impeachment of clinton in the house and trying him? the senate where the american people, they wean really happy with president clinton but they thought the country was doing okay. they didn't want to throw him out even though they did think that, did not necessarily approve of his behavior.

so the there was a backlash against republicans. so the normal pattern was, would seem to have been broken during that time. now why, why does this tend to happen in second terms? part of it is, think about when a brand new president is elected. all of you are young enough to remember back in 2009, whether you were a democrat, republican, liberal, moderate, maybe less so conservative, there was a real curiosity. how was this new president was going to do? and sort after curiosity, an energy, excitement, passion, whatever, how is this guy going to do? and people are hopeful, whether they voted for him or not, they generally speaking want the country to do well and so hopefully this will be a turn for the better after going through some tough times. but, and that is fairly typical when a new president is ileced. but overtime the novelty wears

off and over time decisions are made, tough governing decisions are made, that tend to tick people off. and that the fresh, new ideas, tend to dissipate some. "the a-team", the team that elected that president initially, by the time after the re-election, they generally go off to make money. so you have the b or the c team on the field. there are no new idea. they're just sort of, final thing sometimes sort of chickens come home to roost. things you said or did in the first term come back and i will use a technical political science term here, bite you on the ass in second term, things if you like your insurance you can keep it, things like that compact to haunt you in the second term. there are tendency for bad things to happen to presidents in their second terms. sometimes it is economic downturns, for example,

president eisenhower had two recessions in the last two years he was in office. i didn't know you could have two recessions that close together. you could have unpopular wars like vietnam during the kennedy-johnson administration, iraq for george w. bush. you can have scanneds like watergate, during the nixon, ford, controversy over the pardon and monica lewinsky for clinton and thing is, or iran-contra for president reagan. bad things typically happen to presidents during the second term. people just start betting tired and start to become more receptive to change. we've done this and let's do something different. but it's a pattern that holds up pretty, pretty darn well. so those are the two questions. so what's it going to be? well i, when i look, when i look at what's going on and look at the polling data and one thing, i didn't get a chance to go by the office and print this out

but right, write down, our website is cook political.com. www.cookpolitical.com. you go to the homepage, this won't make me any money, right-hand side of the page there is a box that talks about political environment and says, read more and click that. and there's, it is about 10-page document that we update several times a week with the polling date that we think is most relevant in terms of sort of ascertaining what's the political environment going to be like. and we start off with right direction, wrong track numbers. then we go to presidential approval. we have the gallup numbers and as well as abc, "washington post," nbc, "new york times,", fox, cnn, gallup and pugh. we go through consumer confidence. first of all, to the extent we

are taught that midterm elections are usually a referendum on the incumbent president, then looking at the president's job approval rating is very, very important. but it's also said that americans tend to vote their pocketbooks and they tend to vote if they are worried, scared, fearful about the economy, they tend to pessimistic, generally not so good for incumbent party. if they feel good about things, they typically vote on other things. but we have the conn conn ratings. then -- consumer confidence ratings. we have favorable, unfavorable ratings for parties from various polls. we have before that numbers from the kaiser family foundation which is largest, sort of objective body of polling on the affordable care act. sort of watching several questions there in terms of the popularity of the affordable care act. and we have the generic ballot test. maybe another question or two on there. that is sort of a good way to

check in for free and look to see how things are going. so when i look at what's happening right now, the democratic party has lousy fav-unfav numbers. the republican party has even worse favorable unfavorable numbers. the president's approval numbers are 43% where exactly president george w. bush was at this point in his second term which is after iraq already turning sour and after katrina. and so that's exactly, almost, actually some days digit for digit the same where president bush was at this point which is obviously not a good place and republicans took some pretty significant losses back in 2006. so the republican, there is no reason to believe that republicans have improved their standing one iota among minority voters, younger voters, women

voters, moderate voters. none whatsoever. but at the same time, you look over and you look at the president's approval numbers and they're on the track towards where you have bad second term midterm elections. and it is what it is. maybe things better. maybe they do. we'll have to see. you don't just take a poll and skip the election. you carry up through the election. that's why you have campaigns but the thing is right now looks like both of those things are going to happen, or both of those things look to be, if you're going to have the election today, operative. which would tend to suggest canceling each other out. when i talked about what kind of election it is going to be. at this point, there is not any evidence that this is going to be a wave election because for people to vote against somebody they kind of have to vote for somebody. and the thing is, they don't like either side here.

and so i don't see them handing out compliments or willy-nilly handing out victories to either side because they're not really happy with either one. i guess meteorologist would look at this and say it is kind of like an unstable air mass. it is very, very volatile situation but neither side looks to be sort of naturally advantaged by sort of the macro political environment. now, then you say, well, okay. that is the environment. let's get down to sort of cases. i know your next speaker will get more into races but i'm going to do it from sort of a larger sense. we got the house and senate. in house, democrats woo need a 17 net gain to get majority in the house. 17 seats. in big scheme of thing, 17 is not particularly big number. you can look, there is a great,

great book, norm ornstein, tom mann and michael maalvin, vital statistic on congress. terrific book. they have it up on the web. they don't publish it in hard copy anymore and up on the web and available for free. it is terrific. go through brookings or aei website but when you go back and look over time, trying to remember what, what my point was. as i say getting over a chest cold. i remember. 17 is not much. it really isn't but the thing about it is, but in the new world order it is kind of a lot. because there are very, very few competitive districts out there. you know i started as i mentioned earlier, my newsletter back in april of 1984. and it was not uncommon in those days to have, you know, 100,

125, 150 or more competitive districts. and now, it is sort of, you know, depending upon you determine, how you define it, actually i was reading someplace, somebody was using our numbers, defining it as where it voted for president for one party and congress for the other, it went from 99, like 10 years ago, to only 25 now. but the better statistic is that 96% of all the democrats in the house are sitting in district that is obama carried and 93% of the republicans in the house are sitting in district that is mitt romney carried. so there is just not a lot of elasticity in the house left anymore. . . .

>> soyou want to do, if you're the dominant party in a state and you want to absolutely minimize the representation of the other party, you could do an amazing job there now, much better than you ever could before. but there are other things that are at play as well. for example, population sorting. there's a wonderful book that some of you might want to read by a guy named bill bishop called "the big sort." and he basically talks about how people, in a sense, they kind of vote with their feet in that people tend to move and concentrate with people like themselves. people are more comfortable when

they're with like-minded people, and that this is becoming more and more and more so. and that when you look at, say, democratic districts -- or look at, look geographically across the country, what are the districts the democrats tend to represent? they tend to be large urban areas and close in suburbs and college towns. and then you say, okay, where do republicans live? small town, rural america and in the more outer reaches which are the faster growing of the suburbs. but that's a clear population pattern or political pattern that's out there. so even notwithstanding any political gerrymandering that's taking place, you have this taking place as well. and then the final reason is think about the last, say, four elections. in 2008 you remember the iraq war had gotten, you know, it was getting really pretty ugly.

president bush's numbers were, gosh, at one point he got down to like 30, 28%, something like that. so that 2008 you had a really, really ugly election for republicans. and then 2010 it got even worse. i'm sorry, 2008 -- no, i'm sorry. 2008 had a ugly election for republicans, and so a lot of republicans that are sitting in competitive districts or districts that maybe a democrat ought to have, they got washed out, they got washed out back in 2008 just as they did in 2006. so you had back-to-back ugly elections for republicans, the sort of win knowed out a lot of -- winnowed out a lot of competitive districts. then in 2010 the way it went, it was a fabulous year for republicans, and it kind of washed out to sea a lot of democratics that were sitting in districts that ought to be republican. so coming out of those in 2008, you know, it was a decent election for the democrats.

it wasn't a wave, but it was a decent year for democrats. so you basically went through this sort of -- it sort of sorted out. so there really aren't that many fish out of water, so it kind of minimized the elasticity in the house of representatives. so that's made it very, very difficult for democrats to make a 17-seat gain just as it would actually be very hard for republicans to make a 17-seat gain in this environment. and when you just sort of look at the individual races one by one, and we've got a fabulous house editor, david wasserman, who does this. and all he concentrates from the day after one election to election day two years later is looking at each of the 435 congressional districts, is right now, you know, more likely than not that republicans would actually pick up a handful of seats, three, four, five, six, something like that. a very, very small number just based on where there are open seats and where there are competitive races and what's going on in each within.

but that's not -- each one. so then you get over to the senate side and, again, i don't want to poach into the next side, but democrats obviously have a lot of exposure. and the thing to remember about the senate always is that just as the house has two-year terms and so the table is set or the cards are dealt in the house two years earlier. in the senate with six-year terms, you have to go back and look six years. so whenever one party has a fabulous year in the u.s. senate, you know, six years later they're going to be playing defense. because they probably got a whole bunch of seats that they had just won over from the other side, and, you know, and a big risk of vulnerability. and that's exactly where democrats are in the u.s. senate and where, basically, of the eight seats that are most likely to make a difference in the u.s. senate, six of them are in states that mitt romney carried. anyway, but again, i don't want to poach onto the next speaker's

turf. so that's sort of how i view the political environment right now. it, you know, on a micro level democrats have a little bit more exposure in the house. in the senate they've got a lot of exposure, in the senate. but at the same time, for republicans to get a majority, they need a six-seat gain in the senate. they have to not quite run the table, but pretty close to run the table to win a majority which is why i would put a republican majority in the senate at something less, considerably less than 50/50 even though it's, you know, almost a 100%, a very, very high percentage chance that republicans will pick up senate seat, but probably not the six seats that they need. and just sort of as an aside, it sure as heck looked like they were going to get a bunch of seats in 2012, and in the end they didn't do it. and part of it were because of these brand problems we've been talking about. but the other problem is one

that's going to exist again, and that is that in this sort of posts-tea party -- post-tea party era, republican primaries have become pretty exotic places. [laughter] and there's been a increased tendency for republican primary voters to choose people who god didn't necessarily intend for them to be members of the u.s. senate. [laughter] and it's cost them seats that they should have won. and whether you're looking at, you know, nevada, colorado, delaware in 2010 or whether you're looking at missouri or indiana in 2012, you know, arguably, you know, right now the senate's 55-45. arguably, republicans should have five more seats than they do right now, but they don't because they follow nateed -- nominatedder the write flawed candidates -- nominated terribly

flawed candidates that were not able to win seats that certainly appeared to be very, very winnable, if not gimme putts. anyway, that's sort of one more consideration out there. so let's just open it up for questions, comments, accusations. you had your hand up a long time ago. let me go with you first. [inaudible conversations] >> i apologize for that, but -- >> no, that's all right. >> my question is throughout your talk you talked about two scenarios, and i completely agree, obviously, because you're the expert. but also -- [laughter] >> you don't have to. >> right. [laughter] >> also it could be something else. but they would seem to be the two most plausible. >> also through my personal experience on campaigns that seems to be quite exactly right. my question is, could you speak to the difference between the electorate who votes and the difference between midterms and presidential elections? because it seems to me that those two are quite different. >> yes. >> and also determine which two

scenario, which is more dominant >> presidential elections tend to draw, obviously, a much bigger turnout, broader turnout, and it's a turnout that more looks like the country. midterm elections you've got a lot of voters that are sort of casual voters. sometimes they vote, sometimes they don't. they oftentimes vote in presidential, but in any other kind of election, they don't show up. and the group that sort of drops off the most is younger voters, down scale voters to a certain extent, but really younger voters. and one particular group that i know stan greenberg be, the democrat pollster with james carville have the democracy corps which is kind of a polling, think tank type thing for the democratic side, that they focus on young, single women voters. that, you know, women voters

under 30, 35 who were single is one of the -- it's a group that when they vote, they vote very heavily democratic, but the win is a really operative term because a lot of times they don't show up on midterm and low visibility elections. so midterm elections do tend to have a turnout. now, it doesn't mean that, you know, republicans win all midterm lengths because, obviously -- elections because, obviously, they lost all control of congress in 2006 which was a midterm election. but generally speaking, turnout, dynamic is something that's more favorable while presidential is more favorable of the democrats. that's absolutely true. but again, it's not completely determinative, but it's an important factor. okay, you were next. >> um, so i guess you spend a lot of time studying elections. what has been the most surprising result in your time, or what result or event in an

election has shocked you the most that you didn't expect? >> well, wow, that's an interesting one because there are a lot of -- i mean, you're in this business long enough, you see stuff it's like, wow, i didn't really see that one coming. relatively recently, after barack obama won the iowa caucus and then turned around and lost the new hampshire primary to hillary clinton, that was kind of a shocker because somewhere in this big country there's somebody who predicted that hillary would win the new hampshire primary after losing the iowa caucus, but i sure as hell never met him. [laughter] anyway, that was one. but i would say just sort of professionally i would say it was that 1994 gingrich midterm election. and the reason is that we had not seen a wave election since, in 14 years, since 1980. and there were -- and i had

vivid memories of the 1980 election. long before i got into this business, i'm a moderate independent now, but i, you know, got my start, grew up as a democrat and had my first few political jobs on the democratic side. and i was -- the election of 1980 i was at the headquarters of the democratic senate or y'all campaign, and actually lucy, who's now my would have, was working there at the -- my wife, was working there at the time. anyway, 1980, indiana and kentucky with are the first states for poll closing times. birch bayh lost by 6:30 in the evening, and then democrats lost a seat every half an hour for, til well after midnight. i mean, it was like boom, boom, boom, boom. and, you know, that was the first wave election since '74.

the watergate election. but, you know, i was in college in '74 and sort of, you know, i was working on the hill but not really aware of that much, you know? but '80 was like, wow, that's really something. but we went 14 years before that was replicated. so you had people running campaign committees on each side who had never personally experienced a wave length. wave election. and there's a tendency to get too wrapped up in this all politics is local thing if you go a really long time without a wave election. and so it's sort of like hard to imagine it happening until you really see one up close and personal. and so that 1994 one was probably -- it was you sort of step back in awe and watch it happening. and i remember the person that first, you know, there's some people on each side that can be relied upon to predict that their side's going to win huge in every single election, okay?

that's fine. and you kind of figure out on each side who they are, then never listen to them again. but the first person that didn't qualify in that category, we were over -- my house editor at the time was a young man named ben who's now a lawyer and intellectual property expert at the motion picture association. but anyway, he was our house editor, our first house editor. and we were over at the democratic congressional campaign committee meeting -- we do this with each side, sit down with their staffs and, basically, do the alabama to wyoming run through of all the races. and it's just sort of on background, what are you seeing, trade notes back and forth what you're seeing. because we meet with a lot of candidates, they obviously meet with all their candidates and sort of trade notes. anyway, we were over there and had just done the alabama to wyoming rundown, and the political director at the time, david dixon, he's a media consultant now, you know, ben

left, some of the other people wandered off, so it was just the two of us standing in this conference room. and he said, charlie, are you seeing anything odd out there? and i said, no, not really. and he said, well, the last month or two we've started seeing some very -- now, this was april of '94. he said we've started seeing, we've started seeing some very odd numbers around the country in places where democratic incumbents ought to be -- now, this is in a different era, and numbers were almost universeally higher in those days than they are now -- but democratic incumbents who ought to be in the mid 50s are sitting around 50%. and people that ought to be just over 50% are well down into the 40s. and he was describing, you know, urban areas, rural areas,

suburban areas, north, south, east, west, young, old, i mean, across the board. and i remember at the time thinking, gosh, i haven't noticed that, but, you know, early on in the cycle, you don't see a whole lot of polling data on individual house races. and be i remember thinking, well, you know, dave and vic fazio, congressman fazio was the chairman of committee at that point, maybe they're just trying to lower expectations, you know, big victory. but over the next, you know, may, june, as i saw more data coming out, it started, you know, looking like you know what? i think he's on to something. and you could just start seeing it build over the summer and build and build and build and build. and at that election republicans needed a 40-seat net gain to get a majority in the house. 40 cements. and -- 40 seats. and if you gave republicans

every conceivable seat that they could possibly win, they still couldn't get the 40. but it was building and building, you know, you could see the direction of the arrow, you could tell the wind was blowing strong. and so i, at the end, i was saying, well, maybe there's a one in three chance that republicans get a majority in the house, but that's sort of like i don't know how many of you have gone bird hunting, but with a shotgun, you kind of lead the bird a little bit. if the bird's going this way, if you aim at the bird, you know, your shot's going to go behind the bird by the time it gets there. so you kind of lead the bird. and clearly it was moving this way, so i said one out of three. not only did they get 40 seats, hell, they got 52. and they, you know, you had republican candidates getting elected who didn't get a dime from their own party. their own party didn't even think they were going to win. and conversely, democrats losing that their own party didn't

think were vulnerable. and that's the kind of sort of spooky, unnatural things that happened in these wave elections. so i'd have to say that one in 1994. and i remember the next really big wave election, 2006, was a wave against republicans. early on in that cycle i remember the two guys that were running the house republican committee, mike -- [inaudible] and jonathan poe be, political director, field director. they started asking me early on where they felt pretty good about things, you know, we've raised more money than democrats, we've got this and this and this and this. by the way, back in '94 what did you see and when did you see it, you know? just out of curiosity, you know? and gradually, some of those things started happening, although it started happening earlier. but anyway, i'd say '94 was like the -- the first time in your professional career you really see a bigtime wave, and is you

just -- and you just go, wow, look at that. okay, there was somebody else over here. okay. we'll go here, and then we'll go back over here. >> during your remarks you compared obama's favorability rating right now to bush's back in 2006 comparing midterms. what were the party favorability ratings for that time period? did the republicans get blamed for the iraq war as a party, or was it just bush? >> that's a excellent question. i have not looked it up. but, um, that's a excellent question. i mean, and the answer's probably. but the other thing is, um, in these midterm elections, second term midterm elections, i mean, some of it is certainly voting, you're angry at a president or a congress, you're angry at something that's going on, and you can vote against them. that's part of it. but the other part of it is

let's say you're in -- let's say, let's say it's 1994. and, well, no, let's use a more modern example. let's say it's 2006, and you're a republican. republicans have control of congress, deficits have gone up. you -- why in the hell did we get into the war in iraq. you know, you're disaffected. maybe it's not that you vote democratic, maybe you just don't vote. because, again, that high variability in midterm elections where it's more socially acceptable not to vote in a midterm election than in a presidential election. and so a lot of times it's just sort of disillusioned partisans staying home. and independents who lean your way staying home. so i have not looked at those numbers. that's a very, very good question. but i think it's safe to say that the numbers weren't that great.

it's a good question. how about back on the back row? yep, jack. >> you've identified the two narratives that could happen in this midterm election as both being branding issues for the party, it's either being associated with a president with lower approval or with the republican brand. so, and since there were just two major fights coming out of congress whether it was the shutdown or the failed rollout of obamacare, do you feel that the narratives that are going to happen at the individual campaigns trying to separate themselves from -- candidates trying to separate themselves or trying to anchor to their party? >> that's another good question. when you're a member of -- you're an incumbent and maybe you're either an enemy -- in enemy territory or a district that's not friendly. there's -- and your president is not popular. there is a tendency to trash

your president and to run like hell away there the him. away from him. and as a general rule, that doesn't work real well. at the same time, do you want to embrace him and identify yourself more closely with him? heck no, of course not. but there is something that's in between. and it's, you know, i don't agree with the president. i agree with him on some things, i don't agree with him on others and, you know, i've got some real misgivings about x, y and z. you know, where you sort of diplomatically put a distance. and sometimes that works, sometimes it doesn't. but the thing is one of the things -- what happens if you just trash a president from your party is among the people that normally come hell or high water are going to vote for you, you're going to turn some of them off by doing that. and they're some of the few people you