captioning sponsored by macneil/lehrer productions >> lehrer: good evening. i'm jim lehrer. control of the congress is at stake this election day, as voters go to the polls across the country. >> ifill: and i'm gwen ifill. on the newshour tonight, we'll have the latest results and reporting from our entire newshour team, including mark shields and david brooks; david chalian and stuart rothenberg; updates from republican headquarters and the white house; plus, field reports from around the country. >> lehrer: that's all ahead, along with a look at today's supreme court arguments in a case about violent video games, on tonight's newshour. major funding for the pbs newshour has been provided by:

and with the ongoing support of these institutions and foundations. and... this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. >> lehrer: this was a day of reckoning for republicans, democrats, and president obama in this midterm election of 2010. newshour correspondent kwame

holman begins our coverage. >> reporter: voters descended on polling places nationwide in a mid-term election almost certain to shift the balance of power in washington and state houses across the nation. there have been months of negative ads, billions of dollars spent, and heated campaigning. >> this is going to determine the future of our state and there's a lot of important issues coming up. a lot of important changes. >> i do think that the spending is totally out of control. >> no government shall have.... >> reporter: all of that at a time of widespread economic uncertainty, and a tea party insurgency driven by strong opposition to president obama's agenda. for his part, the president was heard but not seen today during both taped and live interviews with radio hosts. he checked in with ryan seacrest, the host of american idol, on his morning drive radio show in los angeles looking to stoke up the youth vote. >> you've got to get out there and vote.

you know, young people all across this country, they're the ones who are going to make the difference not just now but in the future. >> reporter: by late today reports from elections officials around the country suggest turnout generally was steady, but in several states participation was above average. at stake today control of both houses of congress with more than a third of the u.s. senate up. that's 37 seats, 18 currently occupied by republicans, 19 by democrats. all 435 seats in the house of representatives were on the ballot. and 37 of 50 governors' offices will have new or re-elected occupants. the breakdown in the current congress shows 57 senate seats held by democrats and two independents who caucus with them for a total of 59. 41 seats are occupied by republicans. in the house, democrats hold 255 seats. republicans 178. and there are two vacancies. most polls showed republicans virtually assured of winning

at least the 39 seats they need to capture the house. their leader and perhaps speaker in waiting john boehner voted in his ohio district this morning. >> for those who i think there's too much spending, think there's too much takeovers, too many bailouts this is their opportunity to be heard. >> reporter: republicans faced longer odds in the senate with g.o.p. candidates in connecticut and delaware lagging in the polls by hefty margins. ale morning the other marquis races, the senate's democratic majority leader harryry in nevada was in danger of losing to republican and tea party favorite sharron angle. in west virginia democratic governor joe manchin and businessman john raese were in a tight race to succeed the late robert byrd. in pennsylvania voters chose between republican pat too manyy. >> i think our supporters are very energized. we have a great great grass roots network on the ground in 67 counties of pennsylvania. i think they're going to turn out to vote for us. >> reporter: and democratic

congressman joe sestak. >> a heck of a lot of that enthusiasm out there. >> reporter: and in illinois, republican mark kirk and democrat-alexi giannoulias. with so much uncertainty it promises to be a long night of vote counting across the nation. rart regardless of the outcome white house officials announced that the president will speak to the results in an afternoon news conference tomorrow. >> ifill: david, let's talk about some of those marquis races that kwame was talking about. starting with west virginia where we see joe manchin who is the governor of west virginia, the democrat, in a pretty tight race at least until recently against john raese, a businessman. >> this is one of the first really key races to watch because it's an early poll closing time tonight.

7:30 p.m. eastern and it is the fire wall for democrats in their battle for overall control of the senate. if manchin can hang on to this seat, that is already in democratic hands, the late senator byrd, that would go a long way to sort of putting up a blockade to senate control for the republicans for the rest of the night. you mentioned he's a governor there and he's quite popular. he has sky high approval ratings. the problem is he's running with a d after his name. in a state with barack obama with a very low approval rating in west virginia. >> ifill: we saw bill clinton of all people going into west virginia to campaign for him. was that significant? >> i think so. this is a state that the president lost, a state that has been moving republican the last couple of presidential contests. it was a state that hillary clinton did railroad well in, older white working class population. the kind of place where president obama has not done well. there's a sharp contrast in these candidates. manchin is a long-time office

holder, statewide election official and now governor. raese has run three times statewide losing each time. he ran back for the senate in 1984 and ran against robert byrd. one been successful. now the race is close. >> a state that hasn't elected a republican in half a century. now to pennsylvania and pat too manyy who has run before and is a republican and has been favored until recently and joe sestak who ran against and defeated arlen specter who famously switched parties earlier in the year. >> one thing i find fascinating about this race is that pat tomby was a tea partyers before there was anything such. he ran the conservative organization called club for growth which part of its admission was to up-end the republicans to get republicans to swear to orthodoxy especially on fiscal issues not social issues. pat tomby a former congressman in this environment, that

issue matrix worked for him really well. he was noon as this fiscal conservative guy. he's running in the right time. in a state that although we have seen tends to the democrats in presidential elections it's always a place that both parties are focused on because it's a lot more purple than it is blue. >> ifill: what kinds of things are you watching for in pennsylvania? >> white working class voters both in the north eastern part of the state and out west. also particularly the philadelphia suburbs. this used to be rock rim republican, liberal republican albeit many years ago and now has been moving toward the democrats looking particularly at bucks county, montgomery county, delaware county out there. just outside philadelphia. this will be a swing area. you know, toomey has been a conservative except that when you look at his back ground i remember when i met him for the first time he was a wall street guy who moved to allen town pennsylvania and opened up a bar. he's not one of these... he

was a member of congress, very poised and polished and smooth. if you're thinking tea party and you're thinking sharron angle, ken buck, rand paul, you better think again. pat toomey has run much more as a moderate this election trying to make people in south eastern pennsylvania more comfortable with him. >> it was the wall street record that the democrats hit so hard. they said he was involved in creating derivatives as an instrument. they tried to tag him with that early on as they were hitting that populist theme because so many people were angered by wall street. >> ifill: as we move through the night we're now waiting for the first wave of the poll closings. we're going to get some numbers on these. but let's go down south for a moment because i am curious about what we can see had the south that might give us some indication about whether the democrats are weak or strong in this first wave of closed polls. let's go to georgia, the governor's race there where barnes the democrat and nathan we'll the republican.

>> this is an interesting race. if you look at the bios you wonder if either party wanted to win this election. >> nathan deal is a long time member of congress. that is not a good thing to be if you're running for any office, if you're trying to get promoted. nathan deal has had a number of ethics issues in this campaign, personal finances and he had a difficult primary and run-off. on the other hand roy barnes is a long-time... was governor, was defeated when he ran for election in 2002. reputation is more of a liberal. really the question here is i think the region and the year. being a republican in georgia in the south in a wave election may cary nathan deal over the finish line. the polls suggest he's generally been ahead by 6 to 9 points. it could be quite a close race but both of these candidates have some baggage. >> ifill: david, give us a long view. let's talk about this wave election idea that stewart just talked about. what are we watching for to see what the beginning of a wave is if indeed it materializes. >> one of the first things i'm going to look for is sort of what is the shape of the

electorate that is... the people going to the polls tonight, gwen, to vote. do they look like the electorate looked in terms of party make-up in 2008 and 2006? or do they look different? in other words, i believe in 2008 the national house vote, right, democrats to republicans, democrats a 7-point advantage as a share of the overall electorate. they're much more tied. more republicans are voting today than democrats. that's going to tell us what we've been seeing all along about that enthusiasm gap. the republicans were more hungry and eager to get to the polls and vote. if we see that in these exit polls as true we will know that that is part of this wave, that the republican electorate showed up in a way that the democrats did not. >> ifill: what we know for sure is that the economy is in a place in 2006 where it.... >> exactly. the second party equation david is right about the first part. the second is independent voters, swing voters who are as you point out very sensitive to the economy. the republicans are concerned about health care and

cap-and-trade and the size of government. but for independents, for swing voters it is really about jobs and do they swing back to the republicans as many people suggest they would. >> ifill: we'll be talking all night. see you later. >> ifill: coming up, we have much more on the news of this election day, plus banning violent video games for children. but first, with the other news of the day, here's hari sreenivasan in our newsroom. >> sreenivasan: at least 76 iraqis were killed today in a bombing blitz aimed at shiites in baghdad. at least 13 car bombs and roadside blasts ripped through shiite neighborhoods. police and hospitals said in addition to the dead, nearly 200 people were wounded. the attacks came as funerals were held in baghdad for victims of a hostage siege at a roman catholic church. 58 people died in the sunday attack. in afghanistan, new violence took the lives of three more nato troops. there was no word on their nationalities. meanwhile, several hundreds afghans protested in kabul over problems with september's

parliamentary elections. the country's electoral commission has already thrown out nearly a quarter of the ballots over fraud concerns. final results have yet to be announced. more mail bombs exploded in athens, greece, today. two went off outside the russian and swiss embassies, and police found several more bombs around the city. there were no injuries reported. but police in germany intercepted another apparent bomb in the mailroom of chancellor angela merkel. it had a greek return address. separately, it was widely reported that u.s. officials tracked packages sent from yemen to chicago in september. they said it could have been a dry run for last friday's aborted cargo bomb attacks. an american-born radical cleric is now on trial in absentia in yemen. anwar al-awlaki has been linked to the fort hood shootings, the failed bombing of a plane over detroit last christmas, and the times square bomb plot. he is believed to be in hiding in southern yemen. the u.s. has blacklisted awlaki as a global terrorist. in financial news, wall street made modest gains, as investors waited to see how the election results might affect economic policy.

the dow jones industrial average added 64 points to close at 11,188. the nasdaq rose 28 points to close at 2533. san francisco celebrated a world series championship today after the giants finished off the texas rangers last night. the giants clinched it in game five with a 3-1 win. they had not claimed a world series title since moving west from new york city more than half a century ago. the victory sent thousands of fans into the streets of san francisco. officials said most were peaceful, but some revelers turned rowdy, and five were arrested. those are some of the day's major stories. now, back to jim. new york times columnist david brooks. david, how would you characterize the potential importance of this election? there has been a lot of talk about how important it is. >> well, i mean i guess the country has been unhappy with the direction for about six years now. people have been flip flopping back and forth looking for somebody to get us out of the political morass, a sense of

we're not compete ing with china and india. they've been looking for change. they've been sort of bouncing around. two years ago they bounced to the democrats. now you have a lot of people who did bounce to the democrats bouncing to the republicans. a lot of people have split their ballots. you've been hearing over the last several months saying i'm going straight republican. how many they are we'll see. but the effect will be if the republicans take control of the house, well, we'll start repealing bits and pieces of the health care bill, the tax cuts, the bush tax cuts will probably be made permanent at least for a little while. spending will be restrained. it had change the whole atmosphere here. >> certainly change the atmosphere. if you think about it, national health care, the signature accomplishment of barack obama's first two years was achieved by his party without... unlike medicare, unlike social security which were largely bipartisan in the final passage. this was solely democratic party achievement or liability,

depending upon how the election turns out today. but for that reason we will see no more of that. there will not be a democratic majority able or willing to pass something of that magnitude. you'll see an awful lot more of.... >> lehrer: what about david's point that this is a bouncing back and forth. he didn't really say it but i'll ask you. >> sure. >> lehrer: this may not mean a permanent change. it's just another bounce. >> there's no way it's a permanent change. just simply because it's been an election about very little. just as the democrats won in 2006 by not being the republicans, the republicans are winning in 200 but not being the democrats. not being the democrats at least in the past two years. that's where the dissatisfaction is. there isn't a republican agenda. i mean what? lower deficit? and tax cuts? and jobs? now those are all sort of all

kind of appealing but they're not realistic. >> jobs and lower taxes sounds good to me. i'm not sure it's an embrace of the republican agenda but it's a rejection of the idea that you can borrow your way to pross prosperity. the democrats decided we're going to have a stimulus package and maybe a second stimulus package. we'll accrue $800 billion in debt and that will create enough jobs. the american people have certainly rejected that. it's pretty much a rejection of the obama health care plan. when it was passed people thought it would become more popular. it has not. if you look at the moments when the polls really shifted it was june to august 2009. democrats in june 2009 were hanging in there pretty steady. by august they were well behind. that's been deteriorating since. i do think there are policy rejections but i agree with mark that there's not an embrace of the republicans. >> lehrer: how much is this election about barack obama? >> well, i mean, it is. it will be viewed as.... >> lehrer: he'll have a news

conference tomorrow at 1:00. to kind of walk on the results. is he not? walk with it? >> well i have to simply say i hear you. i heard the people spoke last night. this is democracy. that's the statement. therefore, i am. that's the question. fill in the blanks. what is he going to say? how is he going to change? >> lehrer: the idea that he's having a news conference, mark, the very next day, does he create the possibility that he can be the lead tomorrow night rather than the results? >> i see your point. obviously he wants to be part of the lead. jim, we talked about it in the show. he's been talking about this event for too long during the campaign. i mean, he gave that interview with the "new york times". he gave another one with the national journal about what lies ahead. he's been thinking about it a lot. he wants to share it. tomorrow, if in fact the polls

are correct and i have no reason to believe they aren't it's john boehner's night. speaker john boehner. it's a republican resurgence. it's a big republican resurgence. >> he did ryan seacrest today. i think he's doing dora, the explorer. if he says i'm still relevant he'll be the lead which is what bill clinton said if you recall after 1994. for all that i do not get the sense-- and i think a lot of people i spoke to in the white house-- there's a fundamental rethinking going on. they have to adjust. one doesn't get the sense it's a white house that's saying we messed that up. we have to have obama.20. i do not get that sense. >> lehrer: we'll be back with you in a few minutes. thank you. >> ifill: >> lehrer: now, tracking the influence of outside money this election season. newshour economics correspondent paul solman has the story. it's part of his regular reporting: "making sense of financial news."

♪ carly fiorina, he laid off 33,000 employees. >> you would give convicted sex offenders money for viagra. that's what boxer did. >> reporter: $3 billion spent this midterm year up from $2.6 billion during the last midterm. >> conway is the wrng way for kentucky. >> reporter: a recent supreme court decision citizens united lifting limits on corporate and union spending is making a big difference says political scientist tom ferguson. >> citizens united for sure made it not only legal but respectable to just spend any amount of money you want on anything as long as you didn't hand it to a politician formally in a bag. >> politicians and parties still face spending restrictions, but adds republican lawyer ben ginsberg. >> how can you have too much speech in a democracy? the supreme court decision

said that the restriction on speech by corporations and individuals was an unconstitutional infringement on their free speech right now. >> you're too dangerous to have real people over real people. >> reporter: so we have unions battling corporations as never before. >> paid for by the u.s. chamber of commerce. >> reporter: but the citizens united decision coupled with the republican filibuster of the bill to forceful disclosure of third party ad buyers has also meant more money from anonymous groups this year. >> obama cut 455 billion dollars from his medicare. >> reporter: this is part of an estimated $90 million blitz against so-called obama care. >> i don't know what smells worse. my diaper or this new pull. >> protect seniors is responsible for the content of this advertising. >> reporter: who is the coalition to protect seniors? >> well, we don't know. >> reporter: evan tracey runs the campaign media analysis group which tracks political

ad spending. >> there's a lot of these groups that have names very similar to this that really aren't disclosing who is funding the ads. >> reporter: even the "new york times" couldn't trace the wise guy baby. reporter mike mcintyre tracked the funding back as far as one j.handline who brokers health insurance in florida and runs an exercise venture with no obvious political bent. >> when students leave here, i want them to turn around and look back and go whoa. >> reporter: it didn't return our call. he told the times i can't give you any details about where the money came from. >> you've seen the ads. millions being spent by right wing groups to buy an election. all from secret donors. >> reporter: democrats have tried to make hey of the fact that republicans seem to be relying heavily on secret funding this year. when it comes to spending by candidates and partys with the old contribution limits and disclosure rules, says ad tracker tracy, democrats hold

the edge. >> it's almost like the fridge is constantly being restocked. in other words there's nobody that's lacking for money. >> reporter: tom ferguson of the liberal roosvelt institute wrote the book on politics and money golden rule as in he who has the gold makes the rule. he said vermont senator jim jeffords 2001 switch from republican to democrat proves that firms get what they pay for. >> when senator jeffords switched parties he also changed the balance of power in the senate from control by the republicans to control by the democrats. right at that point, the stock values of companies that were heavy givers to republican and soft money dropped. >> reporter: ben ginsberg advised the bush campaign in the florida hanging chads recount and the soft money swift bowed ads against john kerry. to him, the citizens united decision and anonymous donors are not the problem. >> the reason that the system is out of whack is that the

reforms of the last 35 years have tried to reduce the amount of money in politics. what they have succeeded in doing is reducing the amount of money that candidates in political parties can raise and spend. therefore, the loudest voices in the political debates belong to special interest groups at the expense of candidacy. >> reporter: do you think public financing would be a good thing if we had the resources? >> the government ought not to be providing what amounts to food stamps for its politicians. >> reporter: tom ferguson disagrees. >> the bottom line on this is very simple. campaigning is expensive. somebody has to pay for it. either we all pay a little or they control it by paying all of it. >> this ad is not paid for by the corporate front groups. >> reporter: pernicious propaganda, free speech, both? you get to decide. >> american cross roads is responsible for the content of this advertising. >> ifill: now, today's voting as

seen through the eyes of party strategists. judy woodruff has that. >> woodruff: for what's at stake for both parties tonight, we're joined by leslie sanchez, a political analyst and former deputy press secretary for the republican national committee. and karen finney, an independent consultant. she served as director of communications at the democratic national committee. thank you both for being with us. we just saw that report on the effect of these outside groups raising a lot of money, pouring millions of dollars into this campaign. leslie sanchez, do you first. how much of an effect is all that money going to have on this campaign? >> i think it's going to raise a tremendous amount of buzz, certainly media interest. with the advent of social media and a lot of those ads have become viral, they're seen by a lot more people. it creates an area kind of a collective area of people who are in tune to those particular candidates. to that extent i think they have an influence but money has been part of campaigns. this is not new. it's not so over top as one would think based on the media

coverage. >> woodruff: karen finney, not new and not over the top? >> you know, i'm going to have to respectfully disagree. i think one of the big stories coming out of this election actually will be as we learn more about... when reports actually come out, how much money really was spent by outside groups. it's important to remember part of what the citizens united case changed was the way that money could be spent. previously, as you all will recall, it was issue ads. you couldn't attack a candidate directly. you know, that was a big difference that we've seen in this election cycle. again we won't really know how much money and what groups really spent that money until after the election. i think it's definitely something we're going to have to take a look at. >> woodruff: it's not clear to you, karen finney, that one side or the other has benefited more than another yet? >> my guess is that the republicans have benefited more because again, you know, when you... folks on the republican side like to talk a lot about labor and some of those other groups that raise money. but they are... have a

different type of reporting, frankly, than some of what are now called the super pacs like american cross roads. with american cross roads we don't really know who all of those donors are. we don't know exactly where they've spent that money. again, i think that's going to raise a lot of concerns as we realize how much anonymous money was spent. i will bet you that the ruls will show from the elections that places where big g.o.p. dollars were spent, a candidate was bought that supports a certain position. >> i think overall the bottom line reality of this is there is going to be mud on boots on both sides. with respect to transparency, there's certainly a lot of organizations on the left that have generated support and interest for liberal candidates. i don't think it's a fair kind of assumption to assume it's only on the right. what it has done is engaged a lot of people who wanted to be part of the process to the extent that she's exactly right about the unions and the service employee unions and some of these organizations that have given multimillion

dollars in the defense of either protecting kind of incumbent candidates or engaging in those very tight battle ground races. >> woodruff: let me ask you both what you're looking for tonight in terms of the future health of your political party. karen finney, we asked about this earlier today. you talked about political geography in a way. what did you mean by that. >> a couple of different things i meant by that. number one, you know, one of the stories we may see coming out of tonight is there may be a resurgence of republicans in house candidates in the northeast. you remember when chris shays lost, the joke was sort of was that there were no more republicans in the northeast. what does that mean for the democratic party? it's in the south it's very important for the democratic party to continue to grow and have strength in the south. how do we fare in the south? most importantly the west. when i was at the democratic national committee that was really an area where we tried to have a pretty strong foothold.

it's part of the reason why we put the caucus in nevada and put the convention in denver was to try and strengthen democratic prospects in the west. i'll be looking to see how we do in those three regions and also how we do among those obama surge voters, the young voters, african-american voters and hispanic voters that really made the difference in the last election. >> woodruff: leslie sanchez, what about the political map for republicans and for democrats? >> certainly. one area completely different, we are focused the midwest. the midwest is critical in determining if there is this resurgence. it's part of our historical context of being competitive in those spaces but particularly the gubernatorial races. in 1978 the g.o.p. had nine governor gains in gubernatorial races. those a lot of those governors set policies in place that were enabling those voters to get excited. it really led to a lot of the 1980 reagan landslide kind of revolution that moved forward. we're trying to see if we can

regain that. it was interesting that karen and i agree with her on the west particularly the mountainous west, colorado, that was an area with a lot of environmental policies. the democrats were trying to make it kind of california 2.0. i think you're seeing a very strong pushback. another state i point to would be new mexico. it has martinez looking very strong to be the first latino governor. she drew a tremendous amount of support from democrats. certainly independents, but those conservative democrats who were looking for refreshing ideas on education reform, ending corruption, and economic growth. >> woodruff: why does geography matter so much, karen finney? i mean in the midwest in these governors' races, remind us why it matters. >> well, in particular the governors' races leslie is exactly right. it's not something we've focused enough on throughout this campaign season. we are about to face redistricting. so those governors' races are

critically important as well as the state legislative races actually in terms of who controls those state houses, therefore, who will have the most say in redistricting? we know certain states like texas is about to gain seats and other states are going to lose seats so that's going to really have an impact on the house. also obviously when you get to the presidential pennsylvania, ohio, missouri, those are very important states. they are, you know, very important in terms of the electoral votes. florida being another one. again the governor who controls those states very important to the 2012 actually presidential prospects. >> woodruff: just because a party does well tonight or not in one state or another, leslie sanchez, does that necessarily mean they can count on doing well in that same place two years from now? >> absolutely not. you're exactly right. we've reached a series of elections where it's almost as if it's instant gratification is expected from our elected officials. we expect them to honor their word and be transparent, work

together and get things done. fundamentally i think that's what this particular election is about. it's very rare that a midterm election will be nationalized. they're normally a series of 500-plus races. we try to get a collective sense of what the message was. you know, tip o'neill's line all politics is local. that is not the case now. this is the frustration with the growth of the economy, the frustration about certainly federal deficit and spending. but i think republicans need to be careful not to misread this. they are very much going to be judged just the way the democrats are judged on fiscal responsibility, fiscal restraint. are they catering to growth, economic growth and jobs? >> woodruff: i'm going to be talking to both of you in the next hour. before we get to 7:00 in the east before the first polls close, what are you both biting your fingernails about? i'm not assuming you actually do bite your fingernails. but, karen finney, what are you keeping a really close watch on? >> well, obviously we have

some key races in the west. i feel like i have a little bit of time before i really start to, you know, turn myself nuts about those races. as of right now i'm looking at what's happening in florida, pennsylvania, and really hoping joe manchin pulls it out in west virginia. those are the things i'm keeping a close eye on. >> woodruff: leslie. >> watching ohio and some of these key states but particularly i'm watching the women. with martinez i mentioned earlier could be the first latina governor in the state of new mexico, the first woman. there's a woman-to-woman match-up in that state only the third time in history nearby in oklahoma you have two women running for the top seat there. mary fallon looks very strong and good. jamie herera washington third district is running a very competitive race. that would make her only the second hispanic republican woman in 22 years in congress. it's a very exciting time with a changing demographic. >> woodruff: we're going to leave it there. thank you both for now. leslie sanchez, karen finney. thank you.

>> ifill: now, video games and free speech-- today's arguments at the supreme court-- and to jeffrey brown. >> brown: the case is schwarzenegger versus entertainment merchants association. the issue is whether california can ban the sale of violent individual video games to minors. marcia coyle of the national law journal was of course in the courtroom and joins us now. start with some background on this california law. >> the law was enacted in 2005. it bans the sale or rental of violent video games to anyone under the age of 18. it defines violent video games as involving killing, maiming, dismembering, and sexually assaulting the image of a human being. the law never took effect because shortly after it was enacted the video game industry brought a challenge in federal court. the federal courts found that

the law violated the first amendment. >> brown: that means california is appealing bringing the case to the supreme court. its lawyer went first today. what's the argument? >> the lawyer for california is a state attorney. zachary morazini. he told the courts that the law has two purposes, two goals. it's to help parents protect minors from accessing violent video games. secondly he said it's to protect minors from the harmful effect of using violent video games. he immediately encountered a blizzard of questions from the justices who asked basically how do you define a violent video game? and if the court would carve out an exception under the first amendment protection for violent video games, where do you stop? what about violent books, violent movies? justice scalia immediately said. >> brown: violent fair he'll tale. >> he said grim fairy tales

are often violent. another justice said what about rap music? the lyrics are very violent? she said cartoons like bugs bunny have a violent impact on children. >> brown: it's interesting. they're talking about how do you define violence. the law has or does try to define it. they're questioning whether that is too vague. >> exactly. in fact, the state's attorney said the way to sort of cabin this is to apply the standard that the court has approved for prohibiting the sale of sexually ex-police explicit materials to minors. is it patently offensive by community standards? does it lack any serious literacy or political or scientific value. does it appeal to the morbid interest of minors. >> brown: to be clear here california faces a very high bar because it's asking for an exception to the first amendment. >> exactly. justice kennedy in particular told this attorney that there is today a social consensus about what is sexually

offensive material. there have been many court decisions about that. but there's no consensus, no court decision, on what constitutes a violent video game. that, he said, indicates to him that this law is vague. that's very problematic for a law that imposes criminal penalties and fines. >> brown: then the lawyer for the video game industry spoke but he too ran into.... >> he had a tough bench as well. this was paul smith of jenner and block, a noted first amendment lawyer. he said there is really no come compelling problem here that the law is trying to address. he said there's not a shred of evidence that has been produced that conclusively shows a link between using violent video games and aggressive behavior later in life. >> brown: it's funny. they were dueling over studies, right? >> they are dueling over studies. >> brown: on both sides. >> there are dueling studies. but chief justice roberts, for example, he said, well, what

about this distinction between books and video games? a child isn't sitting passively there with a video game. that child is doing the killing, the maiming, the sexually assaulting. mr. smith said, well, listen. the law... right now there are plenty of tools for parents to use. there are ratings by the industry. parents can have parental controls on these games. they're effective, he said. >> brown: i'm sure as a father... we both have children of a certain age who might use video games. did the justices in their questions and comments show evidence that they are very familiar with these kinds of games? >> not really. to be honest with you. >> brown: (laughing) >> they didn't totally buy, some of them didn't totally buy mr. smith's argument that there is no problem here. in fact, when i came out of the arguments it seemed to me that there were a number of justices who felt particularly

justices alito and breyer who felt that there is a problem, there is a causal connection. on the other hand, there were a number of justices who also felt that the law is vague and sweeps too broadly. >> brown: as you said the history here is that this is such a high bar because the court has not allowed these kinds of laws in the past. some other states have tried. >> that's right. there have been about six states and several cities and municipalities that have similar laws. they've all been struck down. the case has attracted a lot of attention. there were 32 what we call amicus briefs filed but the overwhelming number of them support the video game industry. >> brown: including we should note many prominent news organizations. >> right. even the reporters committee for freedom of the press. some diverse allies, the chamber of commerce. the american civil liberties union. they all support the video game industry here. >> brown: decision to come in some months, i guess. >> some months. >> brown: marcia coyle of the national law journal, thanks

again. >> my pleasure, jeff. >> ifill: and before we go, one more preview of the night ahead-- which house races to watch and why-- and again to david chalian and stu rothenberg. welcome back, guys. i'm sure it's about some of the early demographic information we're getting about new voters today preliminarily and how they voted. and the depth of their angst about economy. >> it's that issue as david and mark were saying earlier, the economy is permeating this entire election. i found in the preliminary exit poll numbers that are out there right now, gwen, you have more people saying they expect life for the next generation of americans to be worse than it is today than those who think it will get better. 39% say it will be worse for the next generation. 32% says it will get better. to me that is sort of the undergirding throughout this entire election season that nobody or i shouldn't say nobody but that more people have a negative outlook of where the country is going than a positive outlook economically for the next

generation. >> ifill: stu, let's explain how that is playing out in a couple of specific house races. let's start in kentucky. the sixth district. ben chandler is running against andy barr. there are perils to be a first- time incumbent. >> he's not a first-time incumbent. he was elected in the special in 2004. we didn't ben chandler would be in trouble at all. i mean six months ago a year ago. the republicans spent some money on andy barr. he's a former deputy chief counsel under governor ernie fletcher who was rather unpopular. he's an attorney. this is a district that is... was a 43% obama district. so itit is a conservative district with conservative voters. republican voters. andy barr is doing very well. it is a good indicator of how big the wave is. ben chandler may still win. does he squeak it out? does he win comfortably or does andy barr pull an upset?

ben chandler voted for the stimulus and cap-and-trade but not for health care. a lot of republicans tell me they only need one, certainly two. if they have all three they have a winner argument here. this has turned into a tough race. a blue dog democrat who wasn't supposed to have a hard race is having one. >> ifill: david, this one was tough two years ago and that's patrick murphy in pennsylvania the 8th district in sub urban philadelphia. i remember being there in 2008. he's a young iraq war veteran. he beats mike fitzpatrick who held the seat before. this time he's fighting for it again. >> back in 2006 he was part of the rahm emanuel's recruiting class that year. >> ifill: 2006, not '08 you're right. >> bucks county he represents. story of the suburbs here, gwen. this is one of those contested battles. no doubt about it. it is a rematch from four years ago. you may recall that back in 2006 when the democrats were riding a wave and swept into congress, they edged out over republicans the sub urban vote nationwide.

that was not normally the case. that was something that the democrats worked very hard to do. lots of independent voters there. this is one of those key sub urban districts that i think will tell us a larger story about the fabric of the country overall where we live and how we live in terms of choosing our leaders this time around. it seems to me that this would be a place to look that if a wave is happening it's going to happen here as well. in sub urban districts like this one across the country. >> ifill: three more races all of them in indiana, another state we for some reason spend every election night watching very closely. quintessentialally purple. start with the second district. joe donley, jackie warlohrski a tea party backed republican. joe donley is running against her. in the 8th district. there's an open seat. in the 9th hill who is an incumbent running against todd young. i was in kentucky could having the rand paul jack conway race. all i saw was hill ads link him to nancy pelosi. >> these are three different

races. the donley seat is in the northern part of the state. it is an obama district. he won it by a few percentage points. the next one was never regarded as one of the star recruits for the republicans. donley went out of his way very early to run tv ads distancing himself both from speaker pelosi and from the president. it was thought that that would be enough to protect him. but over the past few weeks it's started to look again as though he's vulnerable. this was the case of a guy who seemed to be able to resist the way. now there's some question about that. >> ifill: any of the others? >> i look at all three of these in one category. they were majority maker seats for the democrats. i remember ads in these districts in 2006 trying to use nancy pelosi. she would be speaker. trying to use her then. that did not work. you're right. nancy pelosi has been on the republican ads in these districts throughout this election campaign cycle. it's having a lot more traction this time around. these are precisely the kind

of seats that will be minority makers for the democrats potentially that were majority makers in 2008. >> ifill: if we're watching for the first wave of actual results we should keep an eye on indian. >> certainly. the open seat this is els worth who is running for the senate the democrats have decided not to contest this. this district will go republican. the hill seat is more interesting. he's tenacious campaigner. it is a republican district. he has won in good times and bad times. these times bit be too bad even for him. >> ifill: stu rothenberg, david chalian, see you when we get some numbers. >> lehrer: to mark shields and david brooks. first mark i want to return to the discussion for a moment, the discussion is that judy ran with leslie sanchez and karen finney where they talked about the outside money in this campaign. i know the two of you disagree on this. you still believe this is a bad thing for this election, right? >> it's a terrible thing for the election, jim. for 103 years since the

passing of the tillman act in 1907, there's been a public policy which is you don't... you keep corporate money out of campaigns. i mean that is... that's what the roberts court and alito and scalia and the others opened up this year. we're now seeing outside groups according to open secrets dot-org, the group that david rides on as well, has spent $300 million these outside groups have spent which is more than outside groups have spent in the 10 mid-term elections since 1990. combined. i mean that's how much. i mean, we talk about leslie sanchez mentioned the outside, the service employees union. service employees union has spent $15.7 million. you know, that's a lot of money. but karl rove and ed los angeles pee's cross roads has spent $38.5 million.

i mean it's just a lot of money. it's anonymous. it's unaccountable. it's untransparent in so many instances. it comes with a cost. make no mistake about it. people are doing this like given to the symphony or the orphanage or the little league. >> lehrer: your problem has always been not... you don't have the problem that mark has with this but you have had problems because it's anonymous, right? >> a couple things. first it's bad for government. there's no question about that. it corrupts washington. it corrupts what issues get raised, what issues don't get raised. no question about that. where i would draw a distinction is does it affect the campaign? >> lehrer: the outcome of this election. >> i want transparency. whether it affects the campaigns. first of all if you throw in the outside money and the party money and the cadidate money democrats are still spending significantly more. i just read that in my own newspaper which is the bible. >> lehrer: he added it all up. >> democrats still spending

more. i just don't think it makes that huge a difference because there's so much money on both sides just getting thrown. i would say the one effect it does have is that incumbents used to have gigantic advantage. that advantage has been erased. so to some degree it's helped the out party. i suspect it will help the out party in race after race after race. >> lehrer: you think in this particular case that outside money has helped unseat some incumbents... we're about to see. >> it's leveled the playing field a little. there will be calls about a lack of transparency. i do think if you take the incredible advantages that incumbents generally have, some of them have been might grated. >> you can't say open secrets dot-org is your reliable source and say my newspaper said. it's $1.64 billion according to open secrets dot-org today that has been raised and spent by the republicans. $1.59 by the democrats. that's a lot of money. we're looking at the most expensive race in history.

jim, it comes down to what isn't raised as an issue. if you just get the word that one candidate, one candidate who is favored, they've targeted several democrats tonight, if one of them is beaten by a group that is against any insurance coverage or against bank investigations, the person then who raises that issue, who wants those hearings has to know in his heart or her heart that they're coming after him next time. i think that's the message that is sent by this kind of money. i mean, we're talking about as soon as anybody gets re-elected tonight the first thing they have to do is come to their fund-raiser and say what do we do? we have to raise twice as much this time. >> mark's numbers show $1.64. let's say it's even. i just think you're sitting out there in a campaign. you're watching all the ads that are getting through. you're talking babies about cutting off medicare. i saw an ad against sharron

angle. old people will be dying in the streets. sex add directs running through the neighborhoods. i don't think the ads are that effective when you've seen your 8,000th ad. the idea you're going to be able to trace one ad to an election victory i think that almost never happens night do you think the outside money-- we have to go here in a money-- but the outside money has contributed to the tone of the campaign, to the, quote, nastiness that is in aate lot of these ads. >> both sides have been overwhelmingly negative. there's no accountableability, jim. it isn't my saying i'm the attacking jim lehrer. he double parks. he doesn't return library books. and i'm mark shields and i paid for this. this is some bogus group with a euphemistic name attached to it. they can say david brooks is a known public.... >> that's true. >> lehrer: we get the point. >> thesbian. >> i intuitively agree with that.

it has to have a corrosive effect. >> lehrer: the dialogue. >> i saw a study recently where they measured public cynicism in districts with a ton of outside negative ads and without negative ads and there was no difference. people were equally cynical. there's a complicated relationship between what's on tv and what people think. there's aate low of cynicism out there. intuitively it feels like it must have an effect. >> you can't believe that we need more corporate money in politics. >> i never... i don't think i said that. i don't think i said that. >> that's what this... jim, it is going to be exponentially next time. >> lehrer: that's where we are right now. thank you both. talk to you later. >> ifill: the non-election developments of this day. at least 76 iraqis were killed in a bomb aimed at shiites in baghdad. new >> ifill: again, the non- election developments of this day. at least 76 iraqis were killed in a bombing blitz aimed at shiites in baghdad. new violence in afghanistan took the lives of three more nato troops. there was no word on their nationalities. mail bombs exploded outside two embassies in athens, greece, but no one was hurt. and in germany, police disarmed

a bomb sent from greece to chancellor angela merkel's office. and to hari sreenivasan in our newsroom for what you can see on air and online later this evening. hari? >> sreenivasan: the entire pbs newshour team will be back for an election special at 11:00 p.m. eastern time as well as a webcast on u.s.tream at 10:00 p.m. we'll have the latest projections plus more analysis from mark shields and david brooks and david chalian and stu roetenberg. we'll bring you live updates from republican headquarters here in washington d.c. from senate majority reed's headquarters in las vegas nevada and from our republican media colleagues in key states around the country. online we'll have the resulted latest results from the associated press and a graphic tracking the balance of power in the house and the senate. we'll have a live blog where you can follow the night's big developments, watch video and connect with us by a twitter or facebook. all that and more on air and on our web site, newshour.pbs.org. >> ifill: and that's the newshour for tonight.

i'm gwen ifill. >> lehrer: and i'm jim lehrer. we'll see you online and again here later tonight for that pbs newshour election special at 11:00 p.m. eastern time, and then on the newshour tomorrow night. for now, thank you, and good night. major funding for the pbs newshour has been provided by:

and with the ongoing support of these institutions and foundations. and... this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you.

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