i'm not sure who -- one other example was my friend because he had been encaged during a form of intelligence in a war. so we had some background in ome -- common. he's a good friend although we frequently disagreed on the merits of the cases. >> now, did the deliberations among justices affect the outcome? nishwari asked that question. how much deliberate lation rations occurs and how important is it? >> well, it's important but the amount and it varies with the cases. some cases are -- deliberation is very brief. but the deliberation almost entirely occurs at the conference at the end of the week.

on friday we took the cases from tuesday -- tuesday. wednesdays we discussed the monday cases. but the deliberation is orderly at the conference. the justices speak in turn going around the table. and usually the discussion is over after everyone has spoken but sometimes on the more difficult cases there would be back and fort later on. but by the time the conference is over most of the cases have been decided and will not be -- will come out the way -- the way they're designed to conference. but there are some cases that are difficult and these deliberations that occur at later times on spontaneous occasions you can't really say. >> and when you were the senior justice and the majority and you're thinking about who do we sign the opinion to what are

you thinking about in that part of the process? > well, it varies. you're concerned about distributing assignments fairly and equally is one thing. mainly the primary thing when i was assigned responsibility was to try to pick the justice who would do the best job writing an opinion. on occasion, you would think that if someone was -- it was a very close case and one person's vote was in doubt, i would think that's the person who ought to write the opinion. because i found very often that when you're writing out an opinion you -- your views become more firm than they were before. so i thought if you sign the case to the person who was least committed he's most to stick by his original vote once

he's spelled out the reasons for it. where as if you assign it to someone who's not -- who is clearly on that side, he may lose the court if it's a 5-4 case. so that's one and other areas is the person as you think might -- has shown the best understanding of the case is the person assigned it to. >> george theodore phillips asks how do you build a majority? do you have strategys? ell, no. no, you just do your best at the conference or explain the reason why you think the case should be decided in one way you're persuading the others. you might further try to convince them or unconvince them whatever it might be.

but most of it is just straightforward discussion of the merits. >> so justice brennan kind of famously talked about, -- it's a theme two majorities through charm and personal persuasion. >> he was a charming guy brennan wilson. i liked him very, very much. nd he was very effective advocate too. but i'm not sure that charm really persuades many members of the court. think brennan and scalia were very good friends. they were very charming people but they didn't convince themselves all that often. >> i wouldn't ask you what case they might have convinced each other on.

>> i don't have one readily in mind. >> so i want to go back to your nomination. so were you surprised to be nominated for the supreme court? >> well, yes. ut after the -- after the -- might explain the time frame was quite short between doug lass' resignation and the nomination and during that period, the newspapers had a list of people that they thought were likely nominees and i was surprised to find myself mentioned publically as a possible nominee and then i was even more surprised, of course, when he made the decision. >> i think, yeah, it was really -- it was a remarkable decision by president ford because it was a time in which the nation was still suffering from water

gate. and there was a real crisis and belief in the rule of law. and for him to make -- there were a lot of people who were being pushed forward for ifferent groups, conservatives. ford would say that carla hill would be a good supreme court to nom name. and president ford decided that it should really be someone who was with outstanding integrity and deep connection to the rule of law and he picked you. that's why he was so proud of our selection. >> he wrote me an awfully nice letter. -- what h your -- your was the preselection like? you saw your name in the newspaper.

i think four or five days before he actually made the decision, he had a dinner at the white house at which he -- to which he had nvited maybe 25 or 30 judges ost of whom had been newspaper candidates or something like that. and i was invited to that dinner and i met president ford for the first time at that inner and very important justices were there too. we kind of knew that we were being -- that -- that the -- the pending nomination had something to do with the dinner. >> wow. [laughter] >> and i do remember meeting the president for the first time he came over to our table d talked about the financial

crisis in new york. the federal government was asked to pour in some money. i don't remember the details, but i do remember being very distinctly impressed about the fact that the president was obviously a good lawyer and thoroughly understood the issues and explained what was the on in a way that that average person could not have done it. he was a very articulate person even though he's not known generally for that. he's a very likable person. he was really a decent person. i've come to the conclusion he -- he made good appointments. [laughter] >> he was a great president. so -- and -- so how do you find out that you're nominated for the supreme court? >> well, i told the story about phil strong. >> that would be great.

>> another judge who had been seriously mentioned and as i understand during the final decision-making process there were two or three or four who were most seriously considered. one of them was my colleague phillip tone from chicago who for rutledge ng and joined the same law firm in chicago which i started. and after i left the firm, we continued to be good friends and eventually he was appointed the court of appeals two or three years after i had been appointed. so we find ourselves being -- us a tenseable competitors good friends for the vay can sit. and we had -- vacancy. >> and we said it's kind of hard to do your regular work not knowing what's going on here. and so we agreed -- each of us

agreed to tell the other one if we heard anything about the nomination. then my -- my -- our opportunity to get the job. so about three or four days after we had that conversation, it was the friday after thanksgiving, president ford called me up. and my secretary wasn't there. you yway, he explained have to nominate me. and i was very compleezed. i told him so. and i was very pleased. we're he said we're going to announce this at 1:00 in the afternoon in washington. i ask you not to tell anybody until we announce it publically. i said, i'd like to mr. president, but i had this problem. i told phillips that i would let him know if i had heard

anything. and the president responded by saying, well, i'm sure if you tell them i asked him not to tell him, he'll understand and i forgive you. i said well, i'm unhappy about this solution but of course, i did what the president requested and i left the office. and didn't come back until about 5:00 that afternoon. i visited with my mother, my christian science mother. she was then about my age now. anyway i get to the office -- >> did you tell your mother? >> yes, i did. [laughter] i knew she wouldn't tell anybody. [laughter] anyway, i did -- [laughter] anyway, to finish the story, when i got back to the office

about 4:00 in the afternoon, the phone rang again and i answered it. it was the day after thanksgiving and my secretary wasn't there. and the person at the other end said i'm calling from the white house. and the president has asked me to tell you that you can tell judge tone. we're going to announce it publically. and i thought that's a pretty thoughtful guy that would take that back and seriously call me. and after i hung up phil tone walked in the office to congratulate me. he'd already heard it. [laughter] >> an interesting little -- >> that's a great story. reflects so well on president ford. >> i've often thought about that that he had an awful lot on his mind, he told me that i could keep my promise to phil. >> he was an extraordinary man

with great judgment. >> yeah. [laughter] >> so let me ask you a fe questions about six amendments your most recent book. so what did you -- it's about a book for six amendments that you think we should have for the constitution. >> right. >> how did you come to write it? >> it's interesting. i think i explain in the first chapter, it was the newtown massacre that -- after the shootings up in connecticut there was a "new york times" story that stated that because of the decision of the supreme court a few years ago, the data bases that an f.b.i. uses to check out purchases on firearms are not entirely complete because some states are not -- do not provide all the detail that the f.b.i. requests. and the reason they don't do it

is because of the supreme court is the prince case. i had to state it in the decision. they had very unwisely adopted a rule which is an anti-commandeering rule that prohibits the government compelling state officials to obey any federal command even though world war i draft, world war ii drafts were largely conducted by state officials and not paid by the federal government. but because it was an efficient way to run. but anyway, the court dropped this anti-common deering rule which i thought at the time was unwise. and this "new york times" story , they really should change that. so the proximate cause of the

book was that story. i think i explained that. and after i wrote that i thought there are other things that should be changed to such as the gerrymandering, terrible practice. nobody can defend on the merits. and the court could apply the racial gerrymandering they could apply it to political gerrymandering. so i put in a chapter about that. i had a chapter about campaign financing and then the other chapter that i thought was the most interesting in the book is about sovereign immunity. the notion that a state official doesn't have to obey federal law because the king of england was back in 1500 used to ask immunity that strikes me as somewhat unwise. so i made those four chapters and i thought having -- having written those i thought -- i

also should include chapters about the death penalty and gun control both of which i think should be changed. >> so the death penalty there should not be death penalty? >> that's right. it's a very simple reason. i'm not perhaps as persuasive as i should be. but we now know that the -- our criminal justice system is by no means infallible. proof beyond a reasonable doubt is a very high burden but it does not avoid the real, very serious risk of executing someone who is found guilty unfairly. and that's the reason michigan doesn't have the death penalty because one of the legislators had participated in an execution of an innocent -- a n who turned out to be innocent. >> oh, my gosh. >> yeah. >> and of the six, if you could pick one, what's the most

important amendment to -- to put in effect? >> i think the gerrymandering. it's the most important law of campaign finances is a close second. >> and why gerrymandering? >> well, i think it's a much more -- two reasons, it's very rarely defend on the merits. if you -- government officials have a duty to govern partially try to advance their own political interests when they're acting in a political position. they clearly have a duty to draw district lines in a nonpartisan impartial way they're not doing it. everybody knows it. and you can tell by looking at the maps which districts are crazy shapes and if you -- if you -- if you play the same rule that you apply to racial

gerrymandering which you can put an end it to. and it really distorts the political process. i think it makes primary elections more important than general elections. and as i say on the merits it clearly needs to be changed. >> one of the points that you make in the book is that because districts are partisan it forces people to the extremes. >>er yfment -- yes. ats to the >> democrats to the conservatives and i think that's why we're politically this way. >> i worked for the howls judicial area committee. and most of work in congress at that time, the parties worked in a collegial basis on high visibility issues. they would take the partisan positions and make more

speeches and so forth. but congress was a legislative body on which the -- they were all -- all one team for the most part. >> it's an amazing transformation in that period of time. and the book is really remarkably powerful on each of the six amendments. so, i'd urge all of you to read i. i think we have time for a couple of questions. so do we have the -- aaron, if ou could -- state your name. [indiscernible] >> my name is caleb graves, justice ginsburg said she beliefs the worst decision been the court. do you feel strongly about a decision you disagree with to state the same, what you think would be the worst decision by the court? >> well, i think that probably

e worst decision that's been handed down while i was in the court was bush against gore. that really was quite wrong and i think it game more and more obvious and specifically the and prohibiting a recount the state court was appropriate han following state rules. citizens united was bad enough. but the judgment was bad enough. >> and why was bush vs. gore think it gave the public the incorrect impression that the courts are political institutions rather than doing their best job at trying to figure out what the law is. >> and you've written that early in your career while on the 7th circuit you had a decision very much like your

decision in bush vs. gore. >> that's true. a case arose out of the senatorial election in indiana between two candidates, and recount had been ordered in the three-judge court. i dissented from my two colleagues who thought the recount actually increased the risk anner own youse count of ballots which i thought was quite wrong. that case was reversed by the was on the court of appeals. >> if the recount had continued to probably wouldn't have altered the election. >> there have been some studies that indicate that's the case but the thing that may have roduced the result was the ballots they had in palm beach county if i remember correctly some of the details that patrick buchanan was on the seed a large

number of ballots in an area that probably would have voted democratic. there is a belief gore lost more votes to patrick buchanan than to his opponent. that conceivably could have made a different. but it was just a very strange ballot form they had. it was hard for the voter to use. >> time for one more question. >> i wanted to ask about your thoughts on the equal rights amendment. i know it wasn't addressed in your book and i was wondering if you could talk a little bit about if you think it' been an effective means for change in the women's rights. >> state your name please >> shawlon. >> you have to repeat it for

me. >> so the question is, in your book, you don't talk about the equal rights amendment >> that's right >> so should the equal rights amendment have been adopted and what difference would it make? >> well, that was an issue when i went through the confirmation process. i made the i guess tactical error saying i did not think the equal rights amendment was necessary because i thought if the equal protection clause was properly construed that gender discrimination could be curtailed. and that the national organization for women opposed my nomination because i took that position. that wasn't the only reason. they also oppose mead for some opinions i had written and the fact that i wasn't a woman. and that was a good reason by

the way. but i really don't think it would make much difference if you had the equal rights amendment adopted now. >> you believe the case law would still be the same. >> i think so. i think ruth ginsberg was not on the court and i think actually did not make the oral argument but in the case that berger wrote involving a decedent's estate holding that it was irrational to hold, disqualify women from the job as executor, that's a ground breaking case. i don't think warren berger is given enough credit for that decision. they didn't rely on any particular tiers of scrutiny. he just basically said this is a lot of nonsense. >> this is terrific.

and looking at your confirmation proceedings, should the other concern that was raised was people were concerned about your health. >> that's right. >> and whether you -- i think you've proven them wrong. >> well, i had just two years earlier had a heart bypass operation. it was kind of a new procedure at that time. it's very common, a very common procedure. >> i have to say in the weight of history the fact that you were nominated and confirmed, it's an extraordinary moment in the history of the country in terms of the irpterptation of the constitution and for more than 30 years on the bench you were an extraordinary champion of the rule of law and justice and integrity and we're all really privileged as our students are starting their legal career to be able to listen to you. so on behalf of the entire

georgetown law community, i first of all would like to present -- we have ties but we don't have bow ties. so i can't give you a georgetown law bow tie. that can give you a clock commemorates this occasion. it says to justice stevens on the occasion of the first inaugural conversation to the first year class. so it's a pleasure to be able to present it to you and, please, a big round of applause and thanks. applause] >> thank you. >> next, the d.c. district court of appeals hearing oral argument

bansenging a law that federal contractors from contributing to political campaigns. then president obama talking jobs and the economy at a town hall gathering in indiana. canadian prime minister stephen harper on combating the isis terror group. tonight a debate between the candidates running for montana's u.s. house at large seat. john lewis and republican ryan zinke will debate in bozeman, their only scheduled televised debate before the november election. we'll have it live tonight at c-span.. eastern, on >> this weekend on the c-span networks, tonight at 9:00 eastern the founder and former chair of microsoft, bill ebola viruse outbreak in west africa, and

theay evening on q ask a, director of the smithsonian national museum of african art. on book tv's:00, after words, author heather cox richardson on the history of the republican party. and live sunday at noon on book affairsepth, the legal editor in charge of righters and supreme court biographer. and today at 5:00 p.m. eastern, on american history tv on c-span catching f.b.i. ats on the unabomber suspect. at sunday afternoon 6:00 p.m. the 100th anniversary of the panama canal. atd our television schedule c-span.org. and let us know what you think about the programs you're watching. like us on facebook, follow us on twitter. >> on tuesday, the d.c. circuit

court of appeals her oral challenging acase law that bans federal contractors from contributing to political campaigns. case is wendy wagner versus federal election commission. it involves three independent for various federal agencies. they argue that the ban violates free first amendment speech, and fifth amendment equal protection rights. and 10 about an hour minutes. >> before we begin i want to indicate for purpose of the audience judge henderson is here in spirit. she is very sick today but is listening in as we're going forward with the argument. >> may it please the court. the fundamental problem with section 441-c, whether viewed through the prism of the first amendment or the equal protection clause is a complete lack of fit between the purpose of the statute and the means by which it is carried out.

the purpose is to avoid the appearance of impropriety and possibility of corruption and it simply is not there. >> are you then saying we don't need to look at this under the equal protection clause? are you abandonning that? >> either or both. >> the pierce amendment analysis would be less sweeping, couldn't it? the supreme court hasn't used the equal protection analysis at all. it had a chance to do so in davis and didn't. why would we venture where they refused to go? >> well, your honor, they did use it in austin. of course austin was overruled on the merits but in austin the court first considered whether the statute at issue of michigan there was under inclusive or over inclusive. it rejected that and went on to analyze the equal protection claim that unincorporated associations were treated better than corporations. so it did reach the merits on the equal protection claim and

treated them separately so we have some history. as far as whether one is more sweeping than the other, your honor, i suppose it depends on how you look at it. in one sense if we prevail on the first amendment argument then incorporations are allowed to make contributions at all which of course they are not under 441 b at this time. they would also be forbidden, be permitted to make contributions as contractors. on the other hand if we prevail on equal protection the question of whether 441 c could be amended to protect, preclude individuals or corporations from making contributions would be left for another day. so i guess it depends on how you view the question of whether one is more sweeping than the other. >> mr. morrison i have sort of a general perspective question for you about the fit. as i read these it occurred to me this case is actually quite different from other contribution cases.

you know, there is no risk here that congress is trying to accomplish some nefarious purpose like leveling the playing field or limiting the amount of money in politics or even protecting incumbents. this law is focused on government corruption, not even general corruption but corruption just in the procurement process and its focus only applies to people participating in that process and only while they're participating. so it seems that the fit is actually quite snug and it doesn't raise all these concerns that lurk behind the other contribution cases. so i'm wondering whether you think that's a fair description of what we've got or not. >> well, i would first agree with your honor that this statute is different from all the rest because it's an absolute ban. every other statute -- >> that wasn't my question. i'm curious to your reaction

about the context i try to put the case. is it different from other cases because of this >> it is but i think it is different in another way and that is if you go back to the legislative history of this the reason this was put in, in 1940, it was put in at the time when we had the view that the government could forbid anyone from becoming -- if you wanted to become a policeman you were essentially a second class citizen and the theory at the time was that if you were a government employee or in this case a government contractor, the congress could forbid you from making contributions as a condition of you becoming a government contractor. that is no longer the law. it's clear that accepting money from the federal government as an employee, as a contractor, or a -- >> i agree with that. >> so if we are talking about some sort of suspect motive that's the suspect motive. but i don't think we have to show suspect motive. i think we just have to show it is either under inclusive, over

inclusive under the first amendment. >> the pickup on judge tatel's question while the holmes view is not the current view it is still the case that the government has authority to regulate its own work force more fully than it can regulate private citizens. >> i agree. >> and there is a tradition of ethics rules on government employees and contractors that are much more stringent. why isn't this case better viewed as really a government ethics case than a kind of campaign finance case that we've seen in recent years? >> if the analogy is to federal employees rblings of course federal employees are not limited in contributions. >> i understand that. >> sitting here at my left are entitled to make contributions in any amount except members of congress. >> there is a different package on ethics rules on government employees as you well know and on contractors but the basic point is in terms of government ethics regulation government employees traditionally, this

is not some novel or outlier law, traditionally have been subject to much more stringent ethics regulation and so, too, contractors to some degree as well. and that history seems to be something we should pay particular attention to. >> i agree government employees and federal contractors can inappropriate cases be subject to more strict regulation. we would apply to ordinary citizens. but cases like nteu show there are plainly limits on what federal employees can be made to do or not permitted to do and the question here is, is the fit close enough? i suggest to you that it's not. >> mr. morrison, you're looking at ten or maybe 11 government employees who could not make a contribution of any kind to any federal employee, to any federal candidate or campaign committee. is the code of conduct which bars each one of us from making contributions unconstitutional? >> i have not considered that question, your honor. i think it --

>> now is your chance. >> first i would say, your honor, it doesn't make you a felon if you were to do that. >> i didn't take it that you were -- >> of course the court pointed that out on several occasions your honor. justice kennedy recently citizens united made an important point of that being a felony. >> now that's what you rely on, that's the difference? >> no. i didn't say that, your honor. i guess i would have to ask a question. i would say that the appearance of giving money to federal candidates or persons before whom you may appear is -- >> well there is no corruption issue, there is no chance anybody we give money to is going to help with the corruption since we all have lifetime appointments so what the real purpose behind the ban on our own giving is one judge kavanagh just mentioned which is the importance of the judiciary and like wise the civil service to appear nonpartisan and to not be

appearing to be contributing to campaigns. o isn't that yet on top of the -- in addition to all the things judge tatel said which makes this different than the usual case this is also different from the usual questions about whether bans on campaign contributions are first amendment problems in that they apply as judge kavanagh said also to government employees. so we have not only the concern about quid pro quo corruption and the appearance thereof but also the concern about the neutrality of the civil service. >> i agree your honor that the neutrality of the civil service and the judiciary are very important and would sustain it. congress has made a decision with respect to the neutrality of the federal service that banning contributions is not an essential element. >> well, it has done other things which may be more strict with respect to federal employees as you know under the hatch act. so there's a different kind of balancing here. it's given them the protection

of the merit systems protection board which is not available to the independent contractor. so congress is, if you're saying congress has made this determination and we should defer to it you've pretty much talked yourself out of court haven't you? frpblts well, your honor, if congress had actually sat down with the federal election campaign act in mind with the very many changes in the federal contracting process that have taken place from 1940, and it actually sat down and said, this is the balance we're striking, as it did with the hatch act in 1939 and again in 1993 when changes were made, we might have a different situation. >> but they did that. this law was precipitated by scandal in the 1940's. >> yes, your honor. >> congress banned all contributions by contractors and since then the only major change is that the government contracting has become a far larger percentage of government

work. if anything, it's a much greater concern isn't it today than it was many years ago? >> well, your honor, i would point out two things. first, there was a major change in 1976 when congress amended section 441-c to expressly permit corporate contractors to establish pacs which must be established under their own name. they are funded by the corporations who are contractors and those pacs can make the identical contributions that my clients cannot make. in addition, corporate officers can make contributions. corporate shareholders can make contributions. >> that could be a problem. i know you're arguing for strict scrutiny but there isn't any precedent, is there, that contribution limits should be reviewed under strict scrutiny. we look at this under a closely drawn analysis. >> yes, your honor. i would agree there is no supreme court precedent on strict scrutiny under the first amendment. but i would point out, your

honor, that the most recent case, mccutcheon case, while not directly on point, demonstrates clearly that the closely drawn standard has great teeth as the court said in that case. that it was requiring an objective because there was a substantial mishatch. -- mismatch. >> in mccutcheon you were regulating speech of the general citizenry. as you know it's been discussed, this is a particular type of regulation of individuals who are in close working relationship with the government working for the government under contract and it applies only during the time they try to acquire that contract or are serving under that contract. what i'm trying to figure out is how do cases like board of county commissioners resume there building on the pickering standard for regulating employee speech factor in? do they influence the closely

drawn scrutiny in a way that would give greater deference to the government or should we be applying those standards instead of the more closely drawn? how do those two lines of authority interact in this context, which is very different than the factual context of mccutcheon? >> i agree with your honor that there are many strands of supreme court jurisprudence at issue with this case and this court requires, this case requires the court to deal with the intersection of them. i think that in the campaign finance area, because it's first amendment and as we say also equal protection the court has been very solicitous of the right to make any contributions at all. and so as the court said in the beaumont case, while we don't apply strict scrutiny, we will look at the nature of the activity being regulated. we'll see how broadly it sweeps. we'll look at other alternatives. in beaumont the corporate pac could make the contributions. here -- >> when have they been solicitous of contributions by individuals either working for the government or under a

contract with the government, any more solicitous beyond the balance struck in inbear? >> i agree your honor that the court has not faced the question because under the hatch act as far as employees are concerned they are permitted to make contributions. >> with contractors not employees >> i know of no case. the nasa case which we cited in our brief the court said with respect to background investigations since contractors and employees are alike we should treat them similarly. that is what we're asking for here. treat them the same as the employees. yes, there are differences. yes the merit system protection board protects employees. but there are provisions in the government contracting laws that give contractors who think they have been treated unfairly the right to go to court to make protests and they're not exactly the same because they aren't the same. >> citizens united, which is obviously a pro free speech decision specifically carves out from your perspectives carves out letter carriers as a

precedent that it's approving of and letter carriers of course was a case that said federal service is different in a line quoted as federal service should depend on meritorious performance rather than political service. that seems to be exactly what the government is relying on here. that's cited with approval in citizens united. >> but of course there was no ban on employees making contributions in letter carriers. and the general proposition that employees could -- >> a ban on various first amendment speech and association activities. >> yes, your honor. >> a different kind of speech and association but the basic principle is still cited there with approval in citizens united. >> i don't disagree that there is authority for the congress to regulate the activities of contractors and employees differently from what they would regulate activities of ordinary citizens. >> do you think congress could ban federal employees from all contributions? >> i do not believe so, your

honor. >> why not? >> because i don't think the justification is there for it. if we are talking low level federal employees somebody who work as a custodian or secretary to maik contributions it seems that would be excessive under the first amendment. it would be overly broad and of course we would look to see whether it is under inclusive as well. examinations that this court and the supreme court has insisted on making when regulating speech and the first amendment. >> could i ask about under inclusive because some of the things in your brief had to do with this question you started to talk about with respect to corporate officers. part of the argument is it makes no sense to draw the line in the way the statute does because it includes contractors but it doesn't include the officers of corporate contractors. >> and also the political commitees which are required to bear the same name as funded, so forth.

>> one question i had about that, though, is there is something a little bit odd about a doctrine that says that this is a violation of the first amendment or the first amendment through the equal protection clause because it doesn't restrict enough speech. and in particular i looked at the green party decision. i know the parties we're both familiar with from the sect circuit and that involves a contribution ban that did extend to corporate officers. what was interesting about the analysis is the court sustains it but barely and they say it seems like it's almost overbroad in order to sweep within this corporate officers but we'll hold on those and sustain it. now it seems kind of strange to say that was barely constitutional but it turns out it was actually constitutionally compelled. >> the green party case as i read it, your honor, stands in part for the proposition that it was sustainable because they closed the loop hole. that the green party said, it would make no sense, the court said, to allow -- to ban corporations from making the contributions but to allow the owner of the corporation who has the same name as the

company -- >> i didn't read the decision that way. i thought what they said was that it might well make sense. we are very troubled by the extension of a law to cover corporate officers as well because it restricts more speech. but because the legislature gets substantial leeway in this area we're going to sustain it. but the flip side it seems to me is the legislature should have freedom to decide it doesn't want to restrict more speech by extending the law to corporate officers. >> well, of course, there is a -- another distinction in that case and that is that the law at issue there was in response to a series of scandals. the legislature sat down and consciously drew careful lines, precisely the kind of considered legislative judgment we don't find here. >> still doesn't go to the question of under inclusiveness. the classic statement of the closely drawn rule, which -- test -- which comes from buckley and is repeated in mccutcheon says this. may be sustained if the state demonstrates a sufficiently

important interest in employees means closely drawn to avoid unnecessary abridgement of associational freedoms. to the extent that the statute is leaky and allows more first amendment freedom it does not appear to be inconsistent with the test that the courts employed for closely drawn. and in blount we specifically said that under inclusiveness counts only if essentially doesn't serve the purpose at all. well, of course, the courts for both buckley and mccutcheon are not cases in which anybody was making an argument there was under inclusion of persons similarly situated such as we have here with grantees and ambassadorships. >> yes but the cases that talk about what you are essentially raising is an equal protection argument, as far as i can tell, ones in which there was a concern about what the court repeatedly says was, quote, inindividual youse

discrimination where you have some reason to be suspicious that congress is favoring incumbents over nonincumbents. you don't actually think what's really going on here is that congress is trying to benefit corporations over individual contractors. there is actually no evidence vidious kind of in discrimination. there may be a mistake and leakiness. >> i would agree with your honor. but i think the first amendment on an equal protection clause require more that if it is discriminatory in fact or vastly under and over inclusive in fact that that is enough. that in the area we're dealing with first amendment, fundamental rights -- >> why under inclusiveness? i get your point about over inclusiveness but if the purpose as was pointed out in the green party case is to avoid unnecessary or more restrictions, why doesn't the

statute that just doesn't yet include those restrictions, isn't that a better statute from the first amendment point of view? >> the under inclusiveness, your honor, is there as a check to be sure that the legislature has carefully considered the question and is not doing things inadvertently. to be sure that the asserted purpose is actually being carried out. >> can i ask you, one case that wasn't mentioned a lot in the briefing but seems to bear on it is broderick. in broderick, which was the state law burying of the hatch act as you know the decision came down contemporaneously with letter carriers there was an equal protection clause in that case that said the state provisions were under inclusive because they only encompassed classified employees and didn't encompass unclassified employees as well and the supreme court dispensed with that in a footnote and basically said there is an equal protection claim but the legislature has to have substantial leeway in dealing with it and it would seem

strange to restrict even more speech and the legislature should be given freedom not to go the extra mile and restrict ny more speech than necessary. now you have a supreme court decision that addresses the claim in an analogous context. i am wondering what might be the distinction between the mode of analysis the court applied in that case and what you want us to do here. >> i don't make the argument that the under inclusive as petke is as significant as the fact that the statute is overly broad. i also recognize in broderick there was no ban on the activity we're dealing with here which is the making of contributions. furthermore of course at that time the statute had been recently enacted. >> banning a lot of things in broderick though. >> yes. but most had to do with activities being conducted by civil servants while they were on the job. this activity here is off the job. the irony of this is that the

fec says well you know your first amendment rights aren't completely restricted. what you can do is hold a fundraiser at your house. you can have a fundraiser and invite anybody you want. you can have them raise hundreds of thousands of dollars. people can be there seeking to get ambassadorships and you could spend a thousand dollars of your own money often invitations, food, and it doesn't have to be reported. that seems to me to give lie to the notion that this statute is really all about appearances. >> you think there is secretly something going on here? i do appreciate the role of strict scrutiny in ferreting out the true motives of congress. you don't think their true motive, however, imperfectly they've attempted to resolve it is preventing corruption and appearance? >> i agree that is what they were trying to do but the method is a blunder bust. >> you keep saying ther

putative motive, their stated motive as if you don't believe that was really what their motive was. you don't actually think there is a suspicious inindividual use motive here do you? >> no. i agree they were trying to stamp out corruption. the question is whether the first amendment allows them to do this in this manner and i say the closely drawn standard certainly does not commit as the supreme court has interpreted in all of its recent cases. >> let me ask you a related inclusiveness argument about llc's. an individual contractor can create an llc, right? >> yes. >> and spend as much money as he or she wants, correct on political contributions? >> the answer is if the contractor was a person like wendy wagner who was essentially a part-time consultant for a government agency or an expert witness or someone like that could create an llc, the persons like mr. beller and mr. brown almost

certainly could not have done this through the llc or if they had done it through an llc if the agency would have allowed them they would have had a substantial sacrifice. that is as individuals they have the agency paying the employer's share of their federal tax, fica tax, and medicare in addition they get vacation benefits and sick leave which obviously a corporation could not take. >> excuse me. the equal protection question, your point is in the equal protection side i take it this llc is a realistic option. >> that is correct, your honor. >> switch to the first amendment side for a minute. doesn't that hurt your first amendment case because it is creating an llc is not a realistic option for employees and, you know, then that doesn't undermine the legitimacy of the government's profit interest here. you don't have a lot of private

contractors creating llc's and making political contributions. you don't have that kind of under inclusiveness. >> i agree your honor that the inability of individuals who are essentially working as employees to be llc's in that capacity does not affect my first amendment argument. >> thank you. >> could i clarify -- >> go ahead. >> mr. morrison, you say in your brief that the term committee in this law could extend to the nra or, you know, emily's list or these other groups. is that really in play in this case? >> well, we believe it is. it demonstrates the over breadth of this law, for example, the preston case from the fourth circuit. they upheld the ban on a lobbyist's contributions but there was an out. they could make contributions to a political committee. those are obviously examples.

there are others. for example, minor parties, candidates for the green party or new parties that had no chance of getting elected at all. >> that is a slightly separate question. but the term committee had been consistently interpreted to refer to only groups that have the major purpose of electing a candidate. >> yes. >> and you sort of throw another wrench in the works that makes it seem like it has a very different sweep. >> i want to be clear about that, your honor. there are two kinds of commitees that might come into play. one are the independent commitees that make only independent expenditures sometimes known as super pacs. less so when smaller. those are not at issue here. none of my clients wants to make a contribution to them or anything like them. but there are other commitees that the nra for example has a pac. it is not a corporate pac. it is not a contractor pac. the nra committee makes contributions in elections. that is the kind of committee

to which my clients might want to make contributions and it is banned. >> is that a super pac? >> no >> it's not? >> i believe the term super pac is not defined in the statute. my understanding is those are pacs that make independent expenditures and can do so without limits based on citizens united. >> i only ask because in the district court, the district court said you expressly said your clients do not want to make contributions to super pacs. >> that is independent expenditures. they neither want to make independent expenditures themselves, they don't want to take out ads in newspapers and they don't want to give money to organizations they're taking out ads in. >> what exactly do they want to do that relates to independent commitees? >> they want to make contributions to candidates, to political parties. >> what about commitees? >> they have said they may wish to do that. they have not done so. >> may wish to? from what was said in the district court and in your brief, that issue isn't before

us. you say in your brief that you don't, your clients don't want to. and in district court you told the district court the clients don't want to make contributions to super pacs so what exactly other than political parties and individual politicians, what -- >> there may have been some miscommunication between us and the district court on that. my clients did not expressly indicate they wanted to make a contribution to an organization like right to life committee or the nra or planned parenthood that makes direct contributions. that is a political committee that's covered by 441-c. miller. >> mr. miller, who is the only surviving plaintiff here, does not mention commitees. the other two, who now appear to be moot and whose standing is not really defending do mention commitees. miller just says i would like

to provide financial support for candidates running for federal offices and/or their political parties. so i understand that you have an argument that there was not a way of relieving the over inclusiveness by giving to an issue pac and then contribute but i don't understand that you ave standing or that your -- your clients have argued that they have any intention of contributing to the kind of things you're talking about -- emily's list, nra, whatever you're talking about which then would recontribute to candidates. is that right? >> that is correct. we believe first there is an over breadth argument we are entitled to make in this context. second, your honor, i would say on the standing of both mr. brown, who is temporarily not a government contractor but may well be a government contractor --

>> mr. brown, the statement you've sent in says something like it's possible. >> he is going to look for employment, your honor, and he's been there before. it's in january. it is certainly a possibility he may be again and the same with professor wagner. >> those are almost always the trigger words for us saying no standing. >> mr. morrison, are you saying, i mean i know he would be out of the case but you really put a lot of emphasis on the analogy between contractors and employees. but it seems that in fact some of your clients illustrate exactly one of the big differences which is that contractors tend to be in and out, in and out of service. d that is really, it exacerbates the risk of pay to play. just the kind of quid pro quo corruption that is really at the heart of what this provision is about. somebody who has a short-term contract and then turns around d gets work again, that is

the dynamic at the heart of this. >> with respect to both mr. miller and mr. brown, your honor, i see my time is about to expire. may i answer the question? >> of course >> both of them were of course long-term employees and then many years under contracts. they were hired not because of anything they did politically. they were hired because their employers knew who they were, appreciated their work, and wanted them brought back on the job. professor wagner was hired not because she put in a bid but because the administrative conference of the united states went out and found her. >> i understand. >> and asked her to do that. >> i understand the facts of the case. >> but of course i want to be clear that there are multiple variations on these statutes, that the government has hundreds of thousands of contractors. usaid has 700 people -- >> would you acknowledge that the ban is a better fit when it comes to contributions to candidates than it might be for contributions to political parties? >> well, of course, it depends

which candidates we're talking about. if we're talking about a minor party candidate who has no chance of being elected to office, if we're talking about incumbents sitting on the armed services committee that would be a better fit. but the problem here is unlike this court's decision in s.e.c. a, where the s.e.c. carefully fit the pieces together and made a considered judgment as to where the real dangers were and were not. this statute doesn't come close to satisfying the court's test that there be a substantial matching of the goals and the means chosen to effectuate them. >> any other questions from the bench? okay. thank you, mr. morrison. > thank you, your honor. >> mr. chief judge, and may it please the court, government

contractors pose an acute danger of corruption and partisan disruption of efficient government functioning. could you start with a standard review? i am particularly interested in your brief where you say that, you cite beaumont and you say our standard of review is relatively complacent. >> yes, your honor. >> how do you square that with mccutcheon? >> that is as compared to strict scrutiny. >> are you accepting then, you're not arguing we are to do something other than the standard set forth in mccutcheon? >> that's correct. it is narrowly drawn scrutiny, which the court has indicated is a lesser degree of scrutiny than strict scrutiny and to which courts defer to legislative judgments. >> in your judgment what does that leave us free to do that we could not do under strict scrutiny? in your, in this case? what does that give us the freedom to do here?

>> the sourt koss nt need to assess -- the court doesn't need to assess whether congress employed the least restrictive alternatives. instead it must determine whether it is substantially mismatched with the end served. >> you say mismatched is what we're looking for or not? frpblts it is what you look at. >> or you determine that it is close. >> right. there has to be a reasonable fit, proportionate to the interests served. and the interests only need to be important interests. it is a rigorous review, right? >> yes, your honor. >> okay. all right. >> are we allowed to consider in i other government purposes beyond corruption and appearance of corruption? i mean, you're arguing that there are other purposes at play here, you know, the merit based selection, etcetera. but can we really consider that under governing supreme court precedent? >> yes, judge wilkins. it is true the supreme court has said on a number of

occasions that when implementing campaign contribution limits that the appearance of corruption and corruption are the only interests that can be served. but those we're addressing general liam basketball contribution -- generally limited contributions across the board. but there are limits for imposing that on that class. the other important interest of a merit based work force is appropriate and as judge kavanagh indicated in citizens united which was one of those cases where the supreme court indicated that generally when restricting campaign funding appearance of corruption and corruption are the only interests that can be served, the court specifically noted that the letter carriers mentioned in interest in the, in effective government functions and that the congress has a right to ensure that those functions can be served without partisan -- >> isn't it a little bit different from mccutcheon,

letter carriers, kind of a pickering analysis with more consideration of governmental interests, is that where you also rest your case? or not so much? >> i think the closely drawn crutiny is comparable to the approach so closely drawn scrutiny as we saw in mccutcheon there has to be important government interests and congress does have to employ them in a means that permit some expression of the employee just like in the approach for contractors in pickering for employees. there does have to be -- congress does have to take into account the rights of employees and they have to have some ability of expression. so i think the closely drawn scrutiny, i think the court can easily harmonize the closely drawn scrutiny in the campaign contribution limited context when it is assessing the trgs of not allowing coercion of

employees, contractors, and merit based work force. i think that the two are similar. >> is there any evidence that parties and commitees are somehow involved in the awarding of contracts sm >> there is a sense of evidence that they can be involved in quid pro quos. for example, the very scandal that led to the passage of what i refer to as 441-c though it has been recodified involves the democratic national committee. in the 1930 elections party agents went around the country armed with lists of contractors. >> how do you respond to the mccutcheon argument there and that is that things have changed, that we have a completely new regulatory land scape that affects that in a significant way. what is your response to that? >> this isn't a case where intervening changes in the law have made it so that the function of section 441-c is no longer being served in any meaningful way. there has been some, congress

has paid a lot of attention to this. there have been some measures to make sure contracting in some instances is done through competitive bidding and by professional contracting officers. but a large portion of the contracting work force does not occur through those competitive processes. and the incidence of contracting is a growing phenomenon. >> the 1940's scandal, do you have any other examples where perhaps parties and commitees have been implicated in the award of contracts? >> yes, your honor. there's been extensive experience within the states and states have responded. for example in connecticut governor roland who was -- >> and at the federal level? the arguments at the states are definitely situated that the contract officers there are more political than at the federal level. i'm talking about the federal level. any federal experience where parties and commitees, political commitees are involved in the awarding of contracts?

>> well, there is less evidence at the federal level. >> is there any? frpblts there is. i should point out and congress and the court instructed it should be taken into account. the ban has been in effect since 1940 so the same kind of evidence. we would not expect it to happen at the federal level. it has to happen in more indirect ways and it has. for example, one of the most notorious scandals involving jack abram off and congressman -- abramoff and congressman nay. a foreign government gained a contract to install the wireless service in the united states house of representatives and that money was funded through a contribution to a charity run by jack abramoff and abramoff used those funds -- >> wasn't that a corporate contract? i'm talking about an individual contractor here. that is the point before us. >> it was. but the danger can happen in either case. so it's not the case that the congress --

>> it can happen but i'm asking has it happened. >> certainly at the state level. for example -- >> but not at the federal level. >> at the federal -- well, not necessarily the actual contractor because there are a lot of people that personally associated with the contractor. for example, congressman randy cunningham another one of the most nor tore youse scandals. money was funded by him to several candidate commitees by a defense contractor mitchell ade and other individuals to go to randy cunningham and other candidates and party commitees. so you're not going to find an example of the person who was the actual contractor at the federal level having given a contribution to a party committee for a noncandidate committee. but again at the state level governor roland, some of the money that was used to get him to award a government contract went not only to his candidate committee but also to political party commitees. >> do you think congress could ban federal employees from

making con trib ewings consistent with the first amendment? >> i do and it has. federal employees were not allowed to make contributions to incumbent members of congress until 1993. so if congress decided to reinstitute that ban of course the court would need to actually look at the existing evidence and build a record in the way -- >> how about grant recipients? same answer there? >> i'm not sure. it is something that, again, they would -- there would have to be some evidence of danger. so there hasn't been a record --. >> why, there are lots of mismatched questions here. i don't know that that dooms your case but for example the contractors, the individual contractors are still allowed to raise money and bundle money and you know and i know that the people who bundle and raise money are much more valuable to the parties and the candidates than one individual

contribution. what do we do about that seeming gaping hole in the statute? how do we approach that? >> well, i think congress attacked forcefully the most direct danger. that is money coming from the person who is actually receiving the contract being used to make a campaign contribution. so it is true that other means of expression were allowed including making money for candidates without spending money to do so. but that was consistent with congress's charge here which is to make it closely drawn and not go beyond further than --. >> judge kavanagh's question, that raises the other side of the llc problem. in response to the plaintiff's equal protection argument, the fec said setting up the llc is not onerous.

so under the law all of these contractors could set up llc's and then go and make all the political contribution they want. doesn't that raise some serious questions about what this ban is actually doing? >> i don't think so, judge tatel. and it is true that perhaps congress could go further. >> that wasn't my question. my question was, so the commission's argument is we need to prevent government contractors from making political contributions. >> according to your theory, and the record of this case introduced by the commission, any independent contractor can willy nilly make any contribution he or she wants simply by setting up an llc. and the record also shows that agencies are indifferent to whether or not they're

contracting with the individual or the llc. so doesn't that raise serious questions about the legitimacy of this claim if it can be -- if it can be end rounded so easily? >> i don't think so. hat notion challenges the very atus of separate corporate personhood. so while it does permit a person to set up a separate entity enter into the contract that means that there are some consequences for that. so that entity is the one that has to pay taxes. >> you say it's relatively -- not onerous to do this. that's your record. the other side says it's difficult. >> yes. >> in the equal protection clause. they said it's expensive. you didn't say that. said that it's easy. >> it's easy but there are some

consequences. so congress has attacked the most dangerous possible exchange and that is the legal person who actually is getting the money from the government cannot make the contract. and by permitting persons to set up llc's, that permits -- so that at least the person that actually could be offering the legal person who actually ould be offering the ex-quid exchange for the quo can't make the contribution. >> if i'm a contractor i can set up the david tatel llc and contract with a.i.d. through the david tatel llc and i can make all the contributions i want in my name. >> yes. so -- but that doesn't mean that congress, the ban that congress put in place is not

serving any purpose at all. >> just makes you wonder if it is this easy to escape it what the ban is accomplishing. >> as i said it does attack the most dangerous exchanges. >> the problem with the statute i think is that it doesn't just attack those most dangerous situations. it's a very broad categorical an on donation of even a nickel to even the nra committee or right to life committee or any of those types of organizations and so on the one level you have congress coming in saying, there is a real problem here or a real -- real risk of bad appearances. and so we have to come in full bore with a comprehensive ban. but it's easy to get out of. and so that's what's hard to reconcile. you can't on the one hand say they're getting their worst thing when in fact they got an awful lot more than the worst

thing and then go, it's okay to have this technical distinction. that's a hard, very hard thing for me to reconcile. how do i deal with that under the ly drawn scrutiny like articulated -- in mccutcheon? >> so congress attacked one part of the problem very forcefully but left the scope of the statute, approached that in a very measured way. so in the buckley case and the blount case of this court this under inclusive analysis made clear that congress doesn't have to go as far as it could. so provisions addressing people who own the corporate contractors or have shareholders or substantial owners, legislatures have included provisions. the green party case for example. the blount case did include some of those provisions. a lobbyist case included some family members. and those were upheld.

so congress could have gone that far. >> suppose that congress says, we think these two situations rate the same problem with respect to the appearance of impropriety. the two situations being the stuff that we're covering, contractors, and the layer around contractors, say officers of corporate contractors. we think they made the same issue with respect to appearance of impropriety but nevertheless we're going do cover the first one. there is no explanation or even attempted explanation or even after the fact explanation by the lawyers seeking to defend the law as to how you could draw that line. is your position that it still okay for congress to do that because they can decide not to restrict more speech always? they can decide to stop short and attack it one step at a time even a second step for the same problem? >> well, i think it could -- it would all be struck down if the provision, as this court said in blount, cannot be fairly

said to advance any genuinely substantial government interests. i don't think we're at that point. we probably wouldn't all be here, right, if the individual contractors here, if it was that easy. and that position, that argument today, in fact, some contractors can just set up llc's. they're expert at that position. >> does that make it better or worse? we have a subset that can't do llc's and everyone just like them that can do llc's is going to under this statute and we'll just pretend there is really no real problem if the donation to congressman so and so on the armed services committee comes rom patricia millet, llc rather than patricia millett, contractor. >> like all these questions, it is always going to cut one way or another, right? but those options are not some

to of, congress is going bump up against one or the other. it has a reason to set reasonable restrictions. >> i understand. >> doesn't this go to the question of whether it is closely drawn? in other words, if you can work your way around this by simply being in the corporate form then why do you need a complete ban? why wouldn't a limit be good enough? green , because as the party case said, any dollar amount can raise an appearance of corruption concern. so any dollar amount from the legal person actually making the contribution does raise appearance concerns. but the fact that there are, i setting up ion that llc's completely undoes the regulation would be an attack on the very notion of corporate

personhood. i mean, once you set up a separate entity the individual is no longer reliable for all the misconduct. there are rules, you know, taxes are paid by the llc. the -- there isn't really a difference in this context that would make it that separate legal personhood so unique here that it means the government is not serving any substantial government purpose whatsoever. >> the under inclusiveness is a little concerning, you know, one form of quid pro quo you give and give and then you get your contract. and that's not covered, right, because you aren't covered if you are already negotiating for or under a contract? isn't congressional interest in combating corruption? >> if contracts occurred at some

previous time. >> a one of the contractor and i think, who is in power and has influence? give iniceholder give, one application goes in and i call the constituent services and say can you put in a good word for me and i get the contract. not under negotiation for that contract, i am not covered, right? >> yes. that a contribution would serve the interest even more and congress does not have to go to the logical ends of the interest. there have been a provisions like that and have been upheld.

under all of these interests, the further you go, the danger is being struck down for over breath. -- breadth. the more risk you potentially run of find it is not -- not a substantial fit a because it covers too much. >> doesn't the fact that in their souls under inclusiveness fatally gut any argument that this is really directed at actual corruption because there is so many exceptions like the one that the judge just --tioned that do not apply would not prevent actual corruption? couldly think we could consider it to be the parents of corruption. is that where we are? >> i do not think so. it prevents quid pro quo's.

>> what is the record here on the llc? is a limited record. i think both parties agreed in some cases it is a permissible option for individuals. >> is there any evidence when theress acted it knew that ban could easily be avoided through llc so there was some [indiscernible] action?ess' i have a not personally found that in the case. in mccutchen, the supreme court seemed low to speculate about the shenanigans that might be engaged in. that thisom evidence

was ongoing and a problem. theell, i do not think in 1940 debates that issue was discussed specifically, not to 100% sure about that. honestly, our time has passed and probably more frequent occurrence today. >> no discussion in 1994? >> that was a change to federal employees can make. >> there was no such thing as an 1940? 1940 -- llc in >> i do not think so. fec. is fc -- isn't that the right? regulationr specific but to have a definition of persons.

, not aatutory definition regulatory definition. i was just asking. the definition of person which does not extend -- it would to isgest -- in which suggests, a regulatory definition? >> i do not think it is a definition of person and the statute. >> [indiscernible] it every see that says -- is it that f ec that says [indiscernible] believe there is a regulation specifically to that fact. >> where do these llcs come from?

everybody said you can state the statute by setting up an llc. >> they come as an operation of state law. if people are setting up separate persons under state law, then the definition of person does not reach them. think the court had a right on this question the fact that unless it chooses on one quid render aoes not challenge to the credulous. there are separate persons engaging does not mean that the purpose goes further in some sense. they, the corporate ban, do not have that same

opportunity to set up an llc. part of the equal protection claim is that contracts are worse off, but that is not clear. and some ways they are better off and some ways they are worse off. >> one of the ring is that the challengers said the solution is to regulate the awarding of contracts before you take the speech,infringing on how do you respond to that argument? >> conjures -- congress has andessed corruption interest on a merit-based workforce and multiple flanks. i think congress has done both and it is permitted to do both. it is not evidence of that in those provisions have completely noe the interest in congress longer serving any interest whatsoever. for example, in new jersey, a

state contractor made a number of contributions to try to win a business to debate the motor vehicle system. rewarded on a competitive contract. $400 million. they use their contributions and distort the awarding of the system through the competitive process. it was overturned -- it was over budget and had to be scrapped within weeks. a situation where the actual contractor, the corporation, had written a $1000 check to the senate leader the day after they has grabbed the proposal. they had the person introduced their representative. just submitted their bid in response to proposals. from the actual

contributor. even though in that situation, the formality had been set out to prevent that sort of evidencen, there's not that those sorts of formalities make the interest in fighting corruption and ineffective government functions of being served by the contribution ban. new jersey change the rules after that. in the last 10 years, a number of states have, new jersey, ohio, hawaii. even though there are processes for making bidding. >> can i ask one real-world practical question? how many individual federal contractors are there roughly? millions? >> congress has not been able to get a handle. a lot. many are formal federal employees i would

imagine. someonehe question is, has been a federal employee and is contributed and becomes a contractor and keeps contributing without knowing the applications,orld does the government warned contractors that they are now subject to a ban on contributing? not, i imagine there are a lot of unintentional violations out there. believe it is mandatory ethics training for employees. >> i know for employees but not contractors. entities, not individuals. >> persons as well. i do not a there is clear evidence in the record by believe there he is. measures taken to help contractors comply.

law, not knowing the know it -- is not a knowing the law a defense to the full a new charge? felony- defense to the charge? you say i do not know the law prohibited that. >> no, your honor. criminalection, violation, it would have to be a known and willful violations in some >> the support says willful requires the law. >> correct. to know. >> i wanted to clarify it were not to be drawn into it. i would imagine and there's not i haved in this case and

been thinking about it. one concern is completely unknown violations that could land you in a person's >> that would not be a criminal violation. -- that collate you in prison -- that could land you in prison. -- >> that were not be a criminal violation. >> is a different person making the contribution. >> how does and direct work without going through someone else? you are going through someone else. >> they could be through someone actually set up a separate legal person i do not think that's what the statute was addressing. individual.or the

>> it would not be direct at all. [indiscernible] the individual starts writing checks. two members of congress or politicians, right? >>as they are from that -- they are from the llc. >> you just confused me. seeking an llc, contract with the government and that llc cannot make contributions? chris the individual makes contributions. >> [indiscernible] >> it is a different person. figuringaving trouble out where you get to this. i understand there is nothing in the statute supporting the proposition. and the statute, a federal regulation you are interpreting about llc's is inconsistent with the statute. the statute, even the

regulation, the plaintiff's side talks about individual members of associations and corporations but it talks about them in the plural. fecthere fcc will links -- rulings or are we playing with a shadow? >> is there are not in the context. statute that says a person cannot make a contribution in which the fec has ruled that ofividual is the sole member an llc can make it. be, we canthere may submit something if you would like. i think there might be some indication of that.

but ithe advisory context am not wanted to percent sure. -- one edge percent sure. >> -- 100% sure. -- >> it you are arguing equal protection case? [indiscernible] llc can make contributions, is that correct? >> the individual who has set up -- [indiscernible] >> that is part of the debate, yes. >> at no further questions. -- >> no further questions. we'll give you another two

minutes. >> thank you, your honor. >> i think that llc answer is are subsets of corporations. the more poignant example because there is no difference between llc and person. declaration page. the second point i want to make is just cap announced unable to determine how many federal ,ontractors -- justice kavanagh unable to determine how many federal contractors. as was the democratic national convention -- that having a large number of personal services? >> and yes, it's partially responsive to congress executive . they hire contractors who are doing the same thing as 2 of my

clients are. the scandal in 1940 is concerned, that scandal could instead ofy because the owner taken the contribution the business owner would make the contribution and that is exactly what is allowed and what the most of the scandals are about. the $1000 in japan -- in new jersey, anybody who has -- >> if you are concerned about them being similar to employees, it is the case in the state political parties have -- and try to figure out subtly made clear that a low level employee has to give money to the party if they want to keep their job, right? andf that discourse should forbidden by law -- >> and that rcion forbidden by law.

>> and so is quid pro quo. that's not enough to make limits. we have to look for something close because we are not likely to find at the supreme court said the exact corrupt pardon. isn't that a very similar being from the state of illinois, springs is has two opinions. vur -- burns, the democratic party subtly made sure that only employees who made contributions could be hired by the sheriff. in 1970 six. the republican party did exactly the same thing 15 years later for the state government. parties have an incentive to try to make money even small amounts for large numbers of employees by looking at who contribute and

who does not. if that is the case and we take whycap off, the limit off, don't we think it will happen at the federal level? >> we are dealing with parties and employees and these are parties and contractors and second -- chris though parties are only permitted to make the same contributions my clients are not. >> a whole new group of people available to get contributions for political parties and if we them,f the cap off of what makes us think that in the parties will not take advantage? >> i am sure the parties will contribute and will not get a lot of money from contractors like my clients here, your honor , but they can solicit from much bigger contractors now. can i read it for one second from the government's brief on page 32, most americans lack for

millionaire -- a familiarity and easily view and contribution by contact with suspicion at that's , recent by the political pac's the officers of corporate contras, the chief procurement officers at llc's and that is what is wrong with this. there is no explanation as to why the other protection and the federal election campaign act are not sufficient to take care of those interests and given the substantial mismatch we have here, we ask the court to declare the -- declare it unconstitutional. >> thanks to

outbreak in africa. the director of the smithsonian museum of african art. cox richardson on the history of the republican party. of legal affairs editor

writers. fbi agents on catching the unabomber suspect. afternoon, the 100th anniversary of the panama canal. find our television schedule on c-span.org. let us know what you think about the programs you are watching. you can send us a tweet. join the c-span conversation. like us on facebook and follow us on twitter. president obama says this is the longest uninterrupted stretch of hiring in u.s. harry -- history. september's unemployment rate dropped to 5.9%. the president held a town hall

meeting. this is about an hour and 15 minutes. >> it is good to be back in indiana.

you've got your former congressman in the house. it is great to be back in indiana. i want to thank millennium steel for hosting us today. manual manufacturing day. you don't get the day off. factories like this one all over the country are opening their doors to give young people a chance to understand what opportunities exist in the united states of america. i figured what better place to celebrate manufacturing than with the manufacturer. giving a long speech,

i want to give a speech about the is happening to american economy and what is happening in your lives and in manufacturing. i want to talk about how we can build an economy that works for everybody. it gives everybody a chance. i want to do that here because in some ways american manufacturing is powering the american recovery. we learned that our businesses added 200 36,000 jobs. [applause] the unemployment rate fell from 6.1% to 5.9%. [applause] is theat means unemployment rate is below 6% for the first time in six years. we are on pace for the strongest

job growth since the 1990's. past 55 months, our businesses have created 10.3 million new jobs. [applause] that happens to be the longest uninterrupted stretch of job growth in the private sector in american history. [applause] put mored states has people back to work then europe, japan, and all other advanced economies combined. we put more folks back to work. [applause] this progress we have been making has been hard. it goes in fits and starts.

it has not always been perfectly smooth or as fast as we want. it is real and steady and it has happened. it is making a difference all across the country. this is the direct result of the best workers in the world. it has something to do with some decisions we made early on in my administration. just to take an example, many of you know that the auto industry was in a bad spot. we decided to help our automakers rebuild and retool. they are now selling new cars at the fastest rate in about eight years.

they are great cars. [applause] that has helped a lot of communities all across the midwest. that is just one example of what has been happening to american manufacturing generally. people said american manufacturing was going downhill. everything is moving to china or other countries. harderwest got hit a lot because we were the background of american manufacturing. because people invested in new plants and new technologies, hubs were created between businesses and universities and clinical -- community college is. what we have now seen is manufacturing driving economic growth and away we have not seen in about 25 years.

because of the efforts that we have made, manufacturing has added about 700,000 new jobs. it has grown twice as fast as the rest of the economy. half of manufacturing executives of said they are looking to bring jobs back from china. our businesses are selling more goods overseas then any time in our history. is important is not because of some abstract statistic. paying jobsod at with good benefits. they create a ripple effect through the entire economy. people who are working here at millennium steel are getting paid well and have decent benefits, the restaurants in the neighborhood are doing better. ford to make your mortgage payments. you can buy new car. you can buy some new appliances

and you get a cycle in which all businesses are doing better. to most of middle-class people, the last decade was defined by those jobs going overseas. if we keep up these investments, we can define this as a. of in sourcing. you can bring jobs back to america. when you ask business executives around the world what the number one place is to invest their money, for a long time it was china. place they say the best is here in the united states of america. [applause] so, there is a lot of good stuff happening in the economy right now. is still someere challenge.

there is still a lot of families where somebody is out of work or not getting as many hours as they want. there are people who are having trouble paying the bills. wages have not moved up as fast as all of the gains we are making in jobs and productivity. too much of the growth and is going toealth the top and not enough is spread to the ordinary worker. that means we still have some work to do to put in place policies that make sure that the economy works not just for the few but for everybody. willu work hard at, you the able to pay the bills and retire with some respect. you can send your kids to school without having to worry about it.

that is what we have to be working on. go matter who you are or you started, you can make it here in america. that is what the american dream is all about. [applause] close by saying a couple of things that i know would make a difference if we were doing them right now. to make the economy grow up if employers are hiring they pay as than little bit more and wages go up more. people have more money in their pockets and then they are spending more of it. even more workers get hired. there are things we could do that would make a difference. we should be investing in roads and bridges and ports and infrastructure all across the country. we've got a lot of stuff that

was built back in the 40's and 50's that needs to be updated. if we are putting construction workers back to work, then there needs to be steel and concrete. it means you need engineers during the work and suppliers. that would give a huge boost to the economy. it would make it easier for businesses to deliver their products and services. it would be good for our economy. that is something that we should be doing right now. i have an putting proposals forward to go ahead and start rebuilding parts of america that need rebuilding. nobody disagrees that they need to be rebuilt or in the thing holding us up his politics. we should be raising the minimum wage to make sure that more workers -- [applause] living full time should not be living in poverty.

we have legislation for him and him wage of $10.10 an hour. if you work full-time, you are not living in poverty. states and a bunch of cities around the country have gone ahead and done it without congress. it would help of congress when ahead and did as well. called a hike in the minimum wage, 7 million people have seen their incomes go up. there are still about 21 million people who would benefit if we had a national minimum wage. when you hear people say that if you may summon when wage that means fewer jobs, the states of raged minimum wage have had faster job growth than the states that haven't. this would benefit families. if people have more money in their pockets and working hard, they spend it.

that is good for business and not just for the workers involved. we should be making sure that paid the sameing as men for doing the same work. [applause] that should be a no-brainer for men, too. i remember when michelle and i were both working, i was always happy if she got a raise. i wanted to make sure she was getting paid fairly because it was all one household. the more women that get into the workforce, the more families are reliant on two incomes in order to make ends meet. plus, it is just fair and it is the right thing to do. [applause] there are a number of steps that we can take to make unemployment go down faster and make sure that wages are rising faster.

it would benefit everybody. i will close with this comment. if you look at american history, the times we grow fastest and do best is when we are growing the economy from the middle out and when middle-class families are growing. when working people can get into the middle class, that is when the whole it economy does well. when you have an economy were just a few are doing well and a lot of other people are left still scraping to get by, the economy does not get the same kind of momentum. if you think about what america is about, it has always been about everybody should have opportunity. it should not matter how you started out. if you take responsibility and have good values.

that is the kind of economy that we want to build and we can build that. manufacturing is going to be in the middle of that effort. we have to build on the success that we have had. we are going to keep going until everybody can get a good job and that america is competing against everybody else so that i that the 21st century is the american century. [applause] here how we're going to do this. i am going to grab this microphone. if anybody wants to ask a question, raise your hand. there are probably some people with microphones in the audience. wait for the microphone so everybody can hear you. and kurdish self and stand up. your question short and i will try to make my answers short. we can get more people in the. all right? i will goto go first?

boy girl, boy girl, to make sure that it is fair. introduce yourself. thank you for coming out today, president obama. my question for you is can you share some specifics about the rebuild america act? we have about $2 trillion in deferred maintenance. i do have to tell you because some of you have hit some potholes and try to figure out what the heck is going on and why we aren't fixing that road. not just the traditional roads and bridges. it's also the infrastructure that we don't see. systems, ams, water

lot of them are breaking down. seen ins that we have big cities throughout -- pose a threat if they explode because they are not in good shape. whole bunch of new infrastructure that we should be building. i will give you a good example. our electricity grid, the way we transmit power, if we have old electricity grids, a lot of electricity leaks and lovely power leaks in the transmission to a factory like this one. the more links, the more that is driving up prices because is not as efficient as it should be and is more vulnerable to blackouts. a smarter power grid, not only is it not leaking power but it is sending it in an

efficient way during peak times so that we use less energy and drives down consumer prices and is good for the environment. i will give you one of their example. archaican old, air-traffic control system. you heard about chicago? i don't know why he was mad about being transferred to hawaii. he sets fire to some of the facilities and suddenly people could not get in and out of chicago for a couple of days. i had to land in gary, indiana. -- still somewhat restricted. it turns out that if we revamped our