in the most famous case on this is the south dakota versus dole case. that case the federal government required the state of south dakota to change its drinking age in exchange for receiving certain federal highway funds. and the state challenged that and said that was unconstitutional, interfered with the sate's authority as a sovereign to make these decisions for itself. the u.s. supreme court in a decision by justice rehnquist said that this was still constitutional. but there might be cases where congress was going too far. well, of course, just as in the takings clause cases we don't know what goes too far means. since then there's really been no development in the case law on this issue. and keep in mind that in that case in dole we were talking about 5%, i believe it was of the federal highway funds. i believe the total amount of $4.5 million. now we're talking about a tremendous amount of money as we saw. in fact, medicaid funding to states is usually federal health care funding in general is usually the largest single block of any state's budge

we have butler from 1936 and we have the dole case. that's about it. no court so far as i know, has ever enforced the spending clause as a shield against federal power. and i think that -- the justices will be skeptical of wading into this area. but, i think that dole makes it very clear that some things have to go too far. and when we're talking about this system that basically co-ops the states into branches of the federal government with regard to medical care then you are talking about something that goes too far. thank you. >> thank you, tim for your succinct argument. we're now going to hear from the other side. simon lazarus serves as policy counsel at the national senior citizens law center. he served as associate director of jimmy carter's white house domestic policy staff as a partner in powell, goldstein, frazier and murphy, and as a senior counsel at sidley, austin. he has written prolifically. as has tim. he writes frequently for the american constitution society. the acs blog. and has published several acs issue briefs including mandatory

i think the germaneness inquiry in dole gets there. we don't have that here. >> i know we don't have that here. how does germaneness get to -- >> because it gets to be harder to see -- >> that's germaneness -- >> -- what the connection is -- >> so it fails because it's not germane, but you're saying it would not fail because it's coercive. >> as i sa really trying to get at the same thiciffnt here. >> i know it's different here. i'm trying to understand if you accept the fact or regard it as a coercion limit or that once the federal government -- once you're taking federal government money, the federal government money can take it back, and that doesn't affect the voluntariness of you problem. we're assuming the federal government cannot do this, under the constitution it cannot do this, but if it gets the state to agree to it, well, then it can, and the concern is if you can say if you don't agree to this you lose all your money, whether that's really saying the limitation in the is largely meaningless. >> well, but i don't think that

dole -- the dole conditions are real. the germaneness condition in dole is real, for example. and so those - >> but none of those have addressed the coercion question. >> right. >> so do you think it would be all right for the federal government to say, same program -- states, you can take this, or you can leave it, but, if you don't take it, you lose every last dollar of federal funding for every program? >> i think that would raise a germaneness issue, mr. chief justice, but it's not what we have here. >> but there's no coercion question at all? >> well, but i think -- i think they are related. i think that the germaneness inquiry in dole really gets at coercion in some circumstances, and that's why i think they are related, but, we don't have that here. and if i could, i would like to address - >> no, i know we don't have that here. how does germaneness get -- get to coercion? >> well, because it gets to be harder to see what - >> that's germaneness, there's no - >> -- what the connection is between getting you to do a and the money you are getting for - >> so it fails beca

the dole case did not hold -- was really not about the 5% number. it was true that under the statute involved in dole the penalty for not going along with the requirement of lowering the drinking age was to lose 5% of your highway funds. but the dole case was not really about coercion, as i think you probably know. there are four criteria the court has established to determine whether or not an exercise of the spending power is constitutional. none of which happened to have -- to be about coercion. one of which is whether or not the condition that is at stake is sufficiently germane to the purpose of the grant. and so the issue in that case was whether or not requiring states to enact another law lowering the drinking age was sufficiently germane to receiving highway funds to meet that germaneness requirement, and a couple of justices thought it wasn't but the majority thought it was. there was just a little reference to coercion as a possible thing that might come up in some case off to the side. it really is not appropriate to compare that to this

s behind him financing his campaign bob dole didn't have the bob dole couldn't even legally have we've seen this play out over and over again last few months candidates who have no business even being on a ballot alone being a front runner for president of propped up by their own daddy warbucks rick santorum was nothing until his wall street billionaire foster friess came along to write million dollar checks literally. newt gingrich was done until his billionaire sheldon adelson came along with his hong kong can see no fortune rick perry was nothing until his billionaire texas oil barons and wal-mart heirs came along. the difference between mitt romney and those guys is that mitt romney just has a heck of a lot more millionaires and billionaires on his side it's really that simple and eventually when the deep pockets behind santorum and gingrich realize that their investments are going sour and they're going to jump ship and join romney too so this really has nothing to do with favor ability ratings it doesn't even have much to do with voters this has to do with corporate cash and who

if i were rick santorum i would take dole's advice. party is a very loyal party. if you are a soldier for the party, for the establishment, they will support you later on. maybe it is not rick's time. jon: so, doug, what do you think about that? >> boy, i very much respect bob dole and jeb bush but i really disagree. less than half the delegates have been selected. rick santorum is leading in the polls in louisiana on saturday. leading in north carolina. and, you know, mitt romney has done well with upscale suburban, nonevangelical republicans but he hasn't demonstrated the breadth and depth of appeal necessary to the close the sale and i would say, with only about 45% of republican voters or less supporting him, the fact that he has you know, 563 delegates or less than half he needs to get nominated suggests that the republicans should do what the democrats did. >> doug, i have to disagree with you because in the latest poll, 47% of tea party supporters supported mitt romney in illinois. he have freedomworks said they don't want this

they love bill clinton, but did people get excited about bob dole's? did people get excited about bob dole in 2008, even though they barack obama. campaigns are one when you have someone who excites the days. it is not enough to say, i do not like a rock obama. i am going to vote for mitt romney. you have got to have a candidate to get people so excited they are willing to make phone calls. they are willing to pass out bumper stickers and signs may have in the back of their van in a church parking lots. i do not see that happening for mitt romney, because he has flip flop on social issues. he has flip flopped on health- care issues. he has flip flop on just about every issue there is out there. does that mean mitt romney cannot win this raised salmon and a does not mean that, but craig -- as that mean mitt romney cannot win? that does mean that real conservatives, mitt romney, george w. bush, that energized the base. people like john mccain, bob dole, george h. w. bush, they usually do not win close elections. tavis: i meant that they hate the presiden

for your current medicaid recipients as to whether that will be unconstitutional in south dakota v dole the court held that because the imposition amounted to only 5% of the federal transportation funds that came to the states, the compulsion required in urging the states to raise their drinking age from 18 to 21 was not all that great. i think south dakota v dole was wrongly decided, but still they left open, the court left open the possibility that if the compulsion amounted to more than 5% of the budget and here on average it's about 40%, then you might have a case of using the taxing power co-hersively. that's one of the questions indeed the central question that is before the court in this aspect of its proceedings. we're going to discuss this issue of the implications of obama care for medicaid. first by having our own colleague set forth some of the findings that he has done recently of an imperical sort so you'll have the facts before you before we turn to the lawyers to argue that this aspect of obama care is an unconstitutional and then to sign on laz rus to argue that it is c

dole itself was one of those cases. i think every state raised the drinking age to 21, correct? >> yes, justice sotomayor, and this argument was raised in dole, and the court rejected it as a - >> i guess my point is that political accountability has two components -- what can i do if i like something, and what can i do if i don't like something? and if people really like something like medicaid, they're not going to let you drop it, correct. >> well, the citizens of the state, but that's the citizen of the state acting - >> exactly. that's the whole point, that's their choice, right? >> -- in the capacity of the citizens of the state. and i think that's why i get - try to get back to the point, that's why i think this is wrong to think about this as coercion, because this is a program that works effectively for the citizens of the state, and states' governments -- and state governments think that, and that's why it has expanded the way it has expanded, because it's providing an essential service for millions of needy citizens in these states. it's providing access to health car

how would you answer bob dole? >> i have a lot of respect for bob dole.i was privileged to serve with him in the united states senate. he left in 1996. i was two years in the united states senate. clearly i was 36 years old when i came to the senate. the bob dole and the rick santorum relationship was almost 20 years ago. so i don't blame senator dole for saying what he said and the experience he had 20 years ago with me. obviously i've gone through a lot more in my life since that time. and i think what the people are seeing is someone who can paint a vision for this country, someone who can go out and has the courage to lead and fight to make things happen in this country, and someone who tells them the truth. unlike governor romney who has repeatedly throughout the course of this election maintained that he simply did not advocate for obama care and did not offer a federal mandate as a solution to the healthcare problems that this country is confronting. and now we find repeatedly that governor romney in 2009 at the heart of this debate did just that.

and then continued to fight dole on the legislation. but he would not demonize him personally. that's the senate that we've lost. >> yes. and not only have we lost that senate, where people would treat each other respectfully, lawrence, but we also have lost the assumption that there was compromise and compromise is a good thing. bob kerry, not only is a compromiser, when evenings compromise is appropriate, but when he's told what to do, as in that 1994 anecdote you just provided, he very often does exactly the opposite, because he wants to show that he cannot be pushed around. so i think in bob kerry, we will have somebody, assuming he wins in nebraska, if he does, who is going to be a very reliable democrat when he wants to be. he's going to cross the aisle when he wants to do that. and that's needed. >> e.j. dionne and robert reich, i think we're all rooting for bob kerry tonight. thank you very much for joining me tonight. >> thank you. >> thanks. bye-bye. >>> coming up, bob kerry will actually get the last word tonight. in fact, he's going to sing the last word. you have t

dole itself was one of those cases. i think every state raised the drinking age to 21, correct? >> yes, justice sotomayor, and this argument was raised in dole and the court rejected it -- >> i guess my point is that political accountability has two components. what can i do if i like something, and what can i do if i don't like something. and if people really like something like medicaid, they're not going to let you drop it, correct? >> well, the citizens of the state -- >> exactly. that's the whole point. that's their choice, right? >> -- and i think that's -- to get back to the point, that's why i think it was wrong to think about this as coercion because it's a program that works effectively of the states and state governments think that, and that is why it has expanded the way it's expanded, because it's providing an essential service for millions of needy citizens in these states, providing access to health care that they would not otherwise have. >> you mentioned the dole case, what was the threat in that case? raise your drinking age to 21 or what? tage>> of your highwa

bob dole -- >> why do you say that? >> these are nasty. these people are personal.antorum and gingrich don't like mitt romney at all. >> reporter. >> do you think hillary clinton likes barack obama? >> you know what? [overlapping dialogue] >> the whole press conference, shame on you, inferring that bill clinton was a racist. >> it was an issue-focused campaign t. got nasty a little bit -- a little bit at the end -- [laughter] >> this has been nasty since january. >> in the words of barbara bush -- we just were talking about her endorsement of romney, she said, i have never seen a campaign as bad as this. i take her at her word. >> so do i. >> this is going to stick with him. then when have you president obama's campaign. when they can show romney switching positions on every single issue -- >> and obama hasn't had -- >> the obama positions have changed, but his hair stays the same [overlapping dialogue] >> a little history, bob dole started with 30% negatives and the party was very, very worried about bob doasm but people knew bob dole for his long and established c

bob dole -- >> why do you say that? >> these are nasty. these people are personal. santorum and gingrich don't like mitt romney at all. >> reporter. >> do you think hillary clinton likes barack obama? >> you know what? [overlapping dialogue] >> the whole press conference, shame on you, inferring that bill clinton was a racist. >> it was an issue-focused campaign t. got nasty a little bit -- a little bit at the end -- [laughter] >> this has been nasty since january. >> in the words of barbara bush -- we just were talking about her endorsement of romney, she said, i have never seen a campaign as bad as this. i take her at her word. >> so do i. >> this is going to stick with him. then when have you president obama's campaign. when they can show romney switching positions on every single issue -- >> and obama hasn't had -- >> the obama positions have changed, but his hair stays the same [overlapping dialogue] >> a little history, bob dole started with 30% negatives and the party was very, very worried about bob doasm but people knew bob dole for his long and established

"he was referring to bob dole -- he said bob dole -- in other words, this is pathetic. >> jeb has always been treated different. there is more of a trust in jeb than there was for the rest -- >> now, this is something i have been waiting for for weeks. top aide eric fernstrom was on cnbc today, and made a gaffe that could hurt his guy. >> is there a concern that he might force the governor so go so far to the right it would hurt him with moderate voters in the election. >> i think you hit a reset button for the fall campaign, it's like an etch-a-sketch, you shake it up and start all over again. >> here is what newt said about the etch-a-sketch, he showed a picture of one. here is a copy. he is showing an actual etch-a-sketch, let's watch. >> given everybody's fears on governor romney's flip-flops, so have his communication districter to say that if we are dumb enough to nominate him, by the acceptance speech he will move back to the left. >> here is santorum jumping on the etch-a-sketch remarks as well, let's listen. >> he said it's like an etch-a-sketch. he said you just turn it over an

hatch and lugar were co-sponsors, as was senate majority leader, then senate majority leader, bob dole. and countless other republicans have endorsed the mandate in recent years. in 2009 senator grassley did. in 2007 senator deminute did. senators graham, alexander and corker have all endorsed an individual mandate. hey were co-sporesors of the included an individual mandate, so what we're seeing now is baffling. republicans have gonemain champ individual mandate to being a main antagonist, and you have to ask why. the republicans were fathers of the individual mandate. now suddenly they want to give it up for adoption on the steps u.s. supreme court. the flip-flop on the individual mandate is the prime example of anng proposes simply because he proposed it because it was their idea, and, of course, there is theomney wh care in massachusetts which is based on exactly the same model health care law we passed due years ago. there's no question that the health care law mitt romney passed as governor of massachusetts is the same one that president obama passed at the federal level. four ye

bob dole really likes him. form unfortunately bob dole would have trouble getting elected in kansas nowadays. the state has gone saro far to the right. >> yeah. that's because the state has moved. so you think santorum has the leg up in kansas? >> well, see it's tough to say. santorum is the only one who is campaigning there except for ron paul. ron paul has made some appearances appearances. ansan santorum has gone around the state. i think santorum has the kind of message that resonates there. you know first of all, there is the social conservatism. >> that's very strong in kansas. but he also, you know, frankly, he does the economic pop ulism pretty well. he's a good -- i mean it's all fake populism. it wouldn't help the people at all but he appeals to those values talking about his grandfather who is a coal miner. they mine coal in kansas or they used to anyway a long time ago. >> your whole proemise was that kansas does come from this economic populist tradition? >> that's right. >> rick santorum at least

he was talking about herbert walker bush and then bob dole -- and he throws in bob dole. >> jeb is different. from the rest of the bushes. that there is more after trust of jeb in the heart and soul of the conservative movement that there was frankly for the rest of the bush family. >> now for the best part of the show. this is something i've been waiting for for weeks. aid eric ferhnstrom made a comment that could come back it haunt him, let's listen. >> well, i think you hit a reset button, for the fall campaign. everything changes. it is almost like an etch-a-sketch. you can kind of shake it up and we start all over again. here is what newt gingrich said about the etch-a-sketch. he shows a picture of one. we got a copy of this? here is a video of it. let's take a look. he is showing an actual etch-a-sketch. let's watch. >> given everybody's fears about governor romney's flip-flops. to have his communications director say publicly to all of us, if we are dumb enough to nominate him, we should accept by his speech, he will go back left, triggers everything he talked about. >> it is like the

and said last year, american states doled out $13.7 billion to people who had not properly qualified.s like colorado, which is department of labor says improperly paid more than $300 million over three years. louisiana, more than $500 million. and indiana, $1.7 billion. indiana, according to the u.s. department of labor, seems to have a real problem with doling out a lot of money in what they called improper payments. >> well, that's just poppycock. >> reporter: he says in indiana, much of the problem is people failing to register with the state jobs board before getting money. >> i don't think these can be characterized as improper payments. >> reporter: but the federal government stands pat. saying those safeguards prevent wrongful payments. >> we're holding them accountable to that. and we're saying you're not closing the gap when it comes to improper payments. >> reporter: the idea, making it that much harder for people like the chopper and others, to take your money right to the bank. >> so, mark, what's the labor department going to do about it? >> reporter: diane, one idea is t

the argument goes like, this bob dole wrapped things up fairly early. at a time when he didn't have great candidate skills and ended up going to the general election frame before he was ready. the argue goes it is better for romney, while he is developing his candidate skills to do it against republican primary opponents rather than obama. i don't know if i buy the theory but it is an interesting one. >> i remember when bob dole wrapped that up and i sensed quickly, almost an immediate buyers remorse in the republican party. i did feel that if romney came out of new hampshire for example looking like oh, he's got this locked. he killed them in iowa. he ran away. they got 70% of the vote in new hampshire and here he goes. i felt like republicans would wake up two days later and be sick about it. if romney had wrapped this up too soon. >> well, that gets back to what mark was talking about earlier. what kind of leverage rick santorum, newt gingrich and ron paul have. the flip side is it will be their responsibility and it will be mitt romney's biggest dip

dole, we worried about that campaign right up until the very end.hink a lot of people thought it was over in september and august. and i remember i worked on that campaign right up to the end. we worried about it to the end. because these races are incredibly unpredictable. i worked on the '92 campaign for bill clinton. at this time he was in third place in the polls. so you can recover. the democratic primary last time around was pretty brutal. >> the other issues while these guys are fighting amongst themselves the president has not had to answer some of these questions about where we are in the economy on energy, on unemployment. so that's also a positive for the president. >> yeah. it was strange today. he did go out with an economic message in his press conference. and then the press conference which really is dominated by the questions were all about basically foreign policy. >> and middle east. tone yes, how do you see what's gone on tonight? >> romney had a chance to deliver something approaching a knock out blow tonight. he won't get a chan

so the web was just coming intoa central part of politics and dole didn't have any particular reason to get his web site right because it wasn't a central part of his campaign. in 1998, jesse ventura is governor of pennsylvania, had no real big advertising campaigns, but e-mail became a way that he organized his followers. in 2000, john mccain was the first one who taught the political community how to raise money on line. when he won the new hampshire primary, he raised more money in a single day on line than any candidate had ever done before. 2002, interest groups began to figure out that the internet was a great place for them to promote their ideas, so by 2004, howard dean was using social media. his campaign was really noted for the blogs that it had, even though he never put his fingers to the keyboard on the blog. there were staffers who did the blog for him, and he was learning from mccain about how to raise money and stuff, but the technology community was really excited that he was using these tools to circumvent advertising and communication, and we can go on through the

they see the energy secretary it's not our goal to get gas prices down, they see energy secretary doling this huge loans for alternative energy that end up very obviously failing. they see the no-brainer in keystone and the president actively lobbying against it. i think it makes a difference. >> bret: it's important to note that oil prices are complex, it's a world commodity. it's not just supply and demand. there is are world demand issues, but on the simple term, who is winning this back and forth politically? >> i think politically no question republicans are winning. in part they are making, everything you just said there is true about the way that oil is priced. however, it doesn't mean that the united states and u.s. government in particular can't do anything to affect those prices. if you look what president bush back in july 2009 when he lifted the moratorium in the east and west continental shelf you saw prices come down 45%. what happens you have betting on future supply of oil. people make those bets based on what signals they are getting from the administration. when an admi

half the citizens here are on the government dole. the highest percentage on earth.planning to go to mars. we are building bridges to nowhere that i felt are playing to win. we're playing to lose. they seize on our mistakes and we keep making mistakes. china comes to canada and say we'll buy our hour your oil hous canceling keystone. we alienate our friends and embolden our energy. china cozys up to the friends and say you know the americans are the enemies. super powers are not subtle. sometimes they don't only carry a big stick, they use it. we lost a big stick because we forgot we had it. superpow rers the future for the president. we're losing the future because we're botching the president. dashing wealth as if it's a bad name, why china is creating wealth for countless names. china is in it to win it. piles up surplus faster than it can outsource it. we're in it to pile up deficits faster than we can deal with it. we don't take the ball an run. we kick the ball and pray. china just makes deals. they're running with the ball and kicking our ass. it's amazing. am

it was bob dole that put the mandate which passed. it was newt gingrich who supported the idea of the man date. all of a sudden because obama's law they don't like the mandate but it was republicans idea to begin with. it should have passed before but it did not because bob dole put it in and democrats decided not to put it in but it was a republican concept as it is even though you and i disagree dana and paul ryans forcing to buy medicare insurance. >> kimberly: let's take a listen to howard dean because he is skeptical and he could have read it. >> i believe the individual mandate will be declared unconstitutional. everybody is a libertarian whether they are republican or democrat or independent. so it's relatively small to have the mandate. >> is that a screaming rule. >> is had a howard dean, right? >> bob: keep in mind that howard dean was against the but he was for smi, for making the government control all health care. dean was there, too. that is why it's sour grapes. >> eric: if this is uphold and the law goes through. $1.7

>> bob dole had to spend money for the insurgent candidate.e aired all of his commercials and drove up the negative it was over by september. romney will win ohio will he get the nomination sowed up. he's a weakened candidate. he has to raise money again and drive up his own positives. >> if he does end up sealing the deal, what is he going to be doing to try to beat the b-- be barack obama the presidential machine. >> he has no what i am calling a charisma cushion. you can do things wrong if you have this sort of extra thing. he is not giving that up. every single hit he takes is a huge hit. but i will say he does have as michael barone pointed out, he has a group in the affluent suburbs that could be important in places like ohio, new jersey, pennsylvania that republicans aren't great competitors. >>> what do you think about all of the swing states how important is it for him to steal those and not just ohio? >> he has to do well. swing state is where we had independents and moderates. when you look at santorum and newt he is in a position f