tv Key Capitol Hill Hearings CSPAN January 26, 2015 8:00am-10:01am EST
he is our guest this week on "the communicators." commissioner welcome. the debate on net neutrality is a moving target right now on the hill and the fcc getting ready to do something. what's the debate morph into at this point in your view? >> guest: first, peter thanks for having me on yet again and you picked a good time. the agency is 'em broiled in a number of high profile issues, net neutrality first and foremost among them. to me, the debate has morphed into a political football which i think is unfortunate because it obscures some common ground namely that everyone believes in a free and open internet. and i, for one, embrace as a part of that then-chairman powell's four internet freedoms lawful content, applications of one's choice the freedom to attach devices to one's network
and transparency in terms of service plan information. the question is how do we embrace those four freedoms in the context of regular ration? -- regulation? i, for one, believe the bipartisan consensus that has been in place for almost two decades has served us pretty well. the clinton fcc in 1998 decided the interwith net would be an information service -- internet would be an information service. it was chairmen of both political parties, chairman kennard, chairman powell and chairman genachowski who realized that light touch regulation was the best way to incentivize broadband deployment. so i stand with both parties who have recognized that light touch regulation is the best way to go. but as you know, the debate has taken a turn starting with the president's announcement in december and we now stand poised to consider what is called title ii or common carrier regulation. and in my view that kind of heavy-handed regulation developed eight decades ago would be a tremendous mistake
for the american consumer. for one thing, i think it would impede investment and innovation, and you can look at the comparison between america with its light touch regulation and europe with its public utility style regulation to get a sense of that. secondly i think it would disserve broadband deployment in some of the most important areas of this country underserved and unserved areas. i think you see minority advocates saying that title ii regulation is not the best way to connect americans to digital opportunity. but whatever the chairman proposes on february 5th and whatever we end up voting on february 26th, my goal is going to continue to come back to that belief in a free and open internet that reflects the four freedoms. >> host: joining our conversation, howard buskirk, executive senior editor of communications daily. >> is it essentially a done deal that the fcc's going to
reclassify broadband as title ii service? do you see any way this won't happen at this point? >> guest: it is unclear. the chairman has not yet made his formal proposal so the devil is going to be in the details. obviously, the question is not just do we apply title ii, but there's some quantum of forbearance that he is considering as well. there's no question that the president's announcement in december dramatically changed the political landscape, and the announcement has led some to think that this is all a foregone conclusion. i, perhaps foolishly, believe that we are not a rubber stamp for the executive branch, we are an independent agency. we have to make our decision based on the law is and what the facts are, and the law and facts, i think, are still in flux and we hopefully will reach a decision best for the american consumer. >> on some of these big issues the republicans have dissented and had little effect on the ultimate order. do you anticipate being able to have much of an effect on the
net neutrality order? >> guest: it depends on what the details of the chairman's proposal are. i, obviously, have been outspoken because i believe, as i said, it will impede investment and innovation and lead us down a path that ultimately, will not lead down to the benefit of the american consumer. but if the chairman decides to retain the agency's independence and chart a course that is different from the one the president has suggested, then i think there's some flexibility there that we can take advantage of to reach a consensus. >> and you've talked about president obama and his statements on net neutrality. do you feel in this case the white house went too far in terms of compromising the independence of the agency? >> guest: i strongly believe both as a commissioner and a former staffer is the agency is prized because we are regulating one of the most dynamic sectors of the economy and our ability to regulate it depends in part on the public conception that we
make decisions based on a sober reflection of the facts and the law before us, not on extraneous political considerations that elected officials mighting wish to -- might wish to place before us. you have an elected official not just suggesting a course but prescribing a course -- the perception is going to be we are just another political agency like a cabinet department and that, i think, is ultimately going to be to the long-term detriment of the agency, to the consumer and regardless of the political afilllation of -- affiliation of the official. >> do you think this was an unprecedented move on the president's part? can you think of another example where the white house has involved itself to this extent in an fcc issue? >> guest: without question. i've looked for one, and i
haven't found one. >> host: commissioner pai, would a light touch lead to litigation be you just picked and choose certain aspects to enforce? >> guest: it depends on the particulars. title ii regulation of the type espoused by some will lead to litigation for a number of different reasons. number one, from an administrative procedure act perspective, the agency has never made this its lead proposal, it hasn't teed up the full questions that are necessary for us to build record to support title ii. for another thing, it includes the questions about forbearance, and there you have a whole host of complicated questions about which title ii provision to forbear from and which not and the legal standard for granting it or not granting it. that's going to be challenged as well. additionally, there are some niches of this net neutrality debate that have gone, as far as i can tell anyway unexplored from the legal perspective. just to give you an example the
wireless marketplace is pretty competitive, but if we were to apply title ii to that industry, there is a section of the communications act that explicitly prohibits the fcc from classifying what it calls private mobile services as title ii common carrier services. how do we get around that? that's a pretty substantial legal road block. so one thing is for certain, no matter what the vote is on february 26th, there are going to be briefs filed in the courts of this country, and it will create a lot of uncertainty that won't be good for the advocates or the consumer. >> host: in meeting with companies and interest groups are you getting the sense that they are resigned to this light touch approach? >> guest: i don't think so. i think there is some optimism the agency will take an independent look at this question and in addition to that there are legislative efforts underway even as we speak to try to find a legislative solution.
and the context of this is important. when the d.c. circuit this past year struck down for the second time the fcc's attempt to regulate internet management i said that consider trying to fit this square peg of net neutrality in the round hole of the communications act, we should turn to congress for guidance and try the see if the elected officials can forge a solution. well, now we have an example of that happening where you have leaders on the senate side and the house side trying to come up with a solution that would work. and i commend, of course chairman thune chairman upton and chairman walden for trying to engage in that process. but i think that's one that the agency would do well to give some breathing room, to take a pause from the february vote since there's no immediate emergency that we need to be solved in this industry and let the legislative process play out. >> host: is there a chance that there could be a pause in. >> guest: you'd have to ask the chairmen about that -- >> host: but no signals at the
finishing cc -- fcc? >> guest: none that i'm aware of thus far. >> do you think chairman wheeler's trying to force action by congress? is that part of the gambit here? >> guest: again, you'd have to ask the chairman. so long as there's a february 26th vote i'm just focused on the details and what they're going to be. >> if you talk to people outside the beltway people who aren't telecom experts or regulatory attorneys, i think there's a strong feeling we need to do something to protect the open internet and people don't maybe necessarily completely understand title ii and what exactly the fcc plans to do. do you think that to a certain extent conservatives have sort of lost the public relations battle on this and it's been -- are they doing an adequate job of communicating to the public what it is they want to do exactly and why they're opposed to say, reclassification?
>> guest: i don't view this as a political issue. in fact, i would argue that the issue has been entirely miscast. and i've long said that net neutrality is a solution in search of a problem. i have yet to hear anybody even the most fervent net neutrality advocates, point out what exactly the failure is that requires title ii or any other kind of regulation. let me tell you what i do hear from folks across the country when i speak to them and this covers entrepreneurs in kalamazoo, michigan, students in college station texas and all across this country. what they want is greater broadband competition. now, net neutrality to them is a very handy slogan. when you actually dig under the surface and figure out what their concerns are they want more choice. and that's why i've consistently advocated for the fcc all parts of the government frankly to focus on that instead of what i consider to be the distraction
that's going to invite litigation. remove some of the antiquated barriers to infrastructure investment, embrace the ip transition, for example, so companies don't have to maintain the old copper networks at the expense of deploying more fiber networks. bring more wireless spectrum into the marketplace so maul companies -- small companies that serve small towns across the country are better able to compete with hair wireline -- their wireline brethren. remove some of the regulations that are holding rural broadband deployment back. there are all these different broadband programs we could be focusing on to bring greater competition to the american marketplace which ironically would solve the very problem advocate purports to care about. >> one more question. you were. >> 9/11 counsel's office -- you were in general counsel's office before the fcc. do you see the title ii approach as having major legal problems once it gets to court? do you see it surviving appellate review ultimately?
>> guest: it's difficult to forecast in the absence of an order with reasons that you can discuss and without knowing some of the particulars of the d.c. circuit panel that would address it. but what i will say is that to the extent title ii is the solution and forbearance is a part of that equation the litigation risk would be substantial. just to give you one example on one hand the fcc would have to find that the broadband marketplace is so uncompetitive that net neutrality regulations of title ii style are required. on the other hand, in terms of forbearance the terms would have to apply the very high standards set by the agency in the qwest phoenix order and determine the marketplace is competitive enough. now, i don't know how a particular judge might view that attempt to thread the needle, but it's going to be fraught with legal peril and that's part of the reason why i don't want to go down the path of
greater litigation. remember forbearance takes at least a year sometimes longer than that to resolve. after that you have briefing, oral arguments, the courts trying to wrestle these complicated questions. we're not talking about a decision that is going to be over on february 26th. we're talking about a process that is going to extend probably beyond the obama administration. >> host: commissioner pai, you mentioned the president and broadband. he's been talking about that municipal broadband. what exactly is your position on cities developing their own broadband? >> guest: a great question and timely one. my bottom line on municipal broadband is this: i have serious concerns about the fcc's legal authority to preempt state laws restricting government-run broadband projects. and if you take a look at the case law most specifically a supreme court case written by justice souter in 2004 nixon v. missouri municipal league it cast great doubt on the ability of the fcc to act in the absence of a clear statement by congress that it intended for the fcc to have that authority.
now, as i look at the landscape of section 706 and other parts of the act it seems difficult for me to seem how the fcc would have that authority putting the policy question aside. but let's say for the sake of argument that the fcc did have that authority. it seems to me that the question should be resolved at the state level. after all if a municipal broadband project runs out of funds, as some have are then ultimately the state could be left responsible for bailing out that project. certainly, the fcc isn't going to step in. so if the voters of a state want to pass a law restricting government-run broadband, that's their prerogative. if, to the contrary, they want to allow it, that's prerogative as well. if first and foremost, the legal question is one that i'm focused on. >> host: how do you interpret what the president has been advocating and how that affects the state law issue. >> >> guest: well, certainly the president's announcement doesn't change what the law is. it might affect how people think
about the policy question, but as i read it, the 2004 decision in nixon by the supreme court makes it clear the fcc has to identify what exactly the provision is where congress spoke clearly about its intent to allow preemption. and i simply don't see where that is at this point. >> do you expect the fcc to do something more in reaction in muni broadband? >> guest: this is, again one of the areas where i think we're straying into dangerous territory because you have the president, again, prescribing specifically what he wants the agency to do. so i hope the chairman will take an independent, objective look at it and make the appropriation judgment. and if he does that i'm confident that i can work with him. >> and i want to veer into auctions, that's also a big issue at the fcc with a major auction planned sometime in the next year or two or three where the fcc will be looking at the sale of tv spectrum to wireless carriers for broadband. at the consumer electronics
show, you caused -- you called for a pause in work on that auction. there was a lot of question about what the commissioners meant when they talked about "a pause." what did you mean exactly? can you elaborate on that a little bit more? what did you mean when you said there should be a pause? >> guest: what i meant was i think the time is right for the fcc to take stock of where things are and make sure that we get the incentive auction right as opposed to trying to get it done right now. and there are a couple of different reasons for that. first and foremost, we are as you know, in the midst of the aws-3 spectrum auction in which wireless carriers have put up on the table over $44 billion in bids for midband spectrum. that's a great thing, of course for the treasury, and it helps us satisfy other critical national priorities. but it also means the very parties who we want to make the incentive auction a success in terms of bidding on the wireless spectrum that will be available will have to raise the capital.
and what i've heard is that for them to be able to do that at a sufficient level, they can't turn around on a dime and raise those funds from the capital markets. and so to give them a little bit of time to write their balance sheets and to come to the incentive auction ready to bid fully and freely, a pause, i think, would be salutary. in addition to that, i think it's important for us to reconsider some of the decisions that have been made in terms of structuring the incentive auction. thus far, this auction unlike all of the previous auctions have been that process has been run in a partisan manner leading to a number of 3-2 votes. and so i think that we should draw some of the lessons of the aws-3 auction specifically open eligibility to allow anyone to bid, keeping the rules simple which is something even one of my democratic colleagues has criticized in the context of the incentive auction and making sure that everything is completely transparent so that all bidders can understand how exactly the auction is going to be structured. that process is going to take a while to sort out so i think a
pause would help us do that. >> right now the auction's supposed to start in 2016 maybe a year from now. do you see any way that there's going to be an incentive auction in 2016? >> guest: i'm not sure what the specific date is going to be, but my goal is pretty simple. i want to have a successful incentive auction. the spectrum act of 2012 treats all stakeholders fairly and, ultimately, meets the national priorities that congress identified for us of raising money for deficit reduction and satisfying some other critical national priorities. and i think for us to be able to do that, we need to step away from the very complex structure that has been set up thus far and take a fresh look at some of these questions. >> but, again, that's going to take longer where it would be very difficult to see an auction starting in at least early or mid 2016, right? >> guest: there's certainly a lot of moving parts, no question about it. some of the proposals that have
been teed up, for example, with respect to dynamic reserve pricing have been very complex the common deadline was recently extended in part because of recognition of that. there's litigation in the d.c. circuit that has to be resolved between fcc and the broadcasters, and if we don't settle that, that could push the timeline out even further. a lot of those moving parts have to be resolved for us to make this auction a success and that's why i think a pause would be important. >> host: commissioner pai what's your beef with netflix? [laughter] >> guest: i'm a subscriber, and i enjoy it but putting on my commissioner hat one of the meetings i had late last year involved some allegations that netflix had taken actions to undermine the development of open standards for streaming video. and in particular the allegation was netflix had encrypted some of its traffic in a way that would frustrate the operation of some of the caching software. so i wanted to give netflix a chance to respond so i sent
them a letter asking for their response, and initially our discussions with netflix were productive. i met with them, and i read the letter they submitted and during our meeting they promised to submit information demonstrating that they were not encrypting the technology in a way that would give them an anticompetitive advantage over their rivals and was not intended to undermine open video standards. so we waited and we waited, and that information never came. so we asked them again will you agree to abide by your promise to submit this information and they said, no, our response is our response. and the reason i highlight this issue is not because i believe additional regulation in this area is necessary but when a particular company comes to the fcc and demands public utility regulation on all the members of the broadband industry in the name of of openness but at the same time is trying to secure a competitive advantage over its rivals by undermining open video
standards, then i think that company needs to be called to account. and i think that is the heart of the dispute with netflix. >> host: with netflix, with amazon hulu, etc. etc., we could to on the way we watch tv the way we receive tv is morphing greatly and quickly. how is that going to affect how the fcc regulates or doesn't regulate this industry? >> guest: that's a fascinating question. having grown up in the era of three broadcast channels, and i didn't have cable and satellite it's interesting to see how things have progressed especially of late. this is one of the most dynamic parts of the communications marketplace right now. you have netflix and some other companies as you suggested doing innovative things. hbo, dish and others have announced over the top offerings. i recently learned youtube is
producing its own halftime show for the super bowl and you have major media companies producing video for first runs on facebook. and so in light of all this innovation and diversity of programming that we see, it seems to me that the burden is on those who would want to impose some of the legacy video regulations on some of these innovative players. that hurdle should be somewhat high or than normally. but to that extent, to the extent that the commission has teed up a number of different questions about this and certainly would approach it with an open mind but my presumption would be to let the marketplace thrive let entrepreneurs what they do best and let the american consumer benefit from the golden age. >> host: in your view, would it be helpful to the fcc for a rewrite of the telecom act? >> guest: i think to the extent that the act recognize that convergence is a reality. you have formerly distinct competitors, companies competing with each other and to the
extent that it would give the fcc the flexibility to recognize when some statutory and regulatory requirements have outlived their usefulness. quite a bit of effort at the fcc is spent trying to figure out whether and to what extent we have to apply a regulation that doesn't reflect the nature of the modern marketplace, and that is something that ultimately harms the industry that is meant to serve consumers. it's -- we have to impose regulations that prevent them from adopting a new business plan or a new, innovative service, and that's not something that i think the agency wants to do. but we need the statutory flexibility in some cases to be able to modernize our regulations. >> i wanted to also ask you about life at the fcc. we've seen what some say is an historically large number of 3-2 party line votes on a lot of different issues. what's going on here? why can't you guys get along? [laughter] >> guest: there's no doubt that the trends in terms of party line votes at the commission is
troubling, and having served as a commissioner and formerly as a staffer under five different chairmen, i can tell you it is unprecedented. i think that part of the problem is that there is not a spirit of collaboration and consensus at the agency as there was as there has been. there's been one estimate that there have been more 3-2 party line votes in the past year than under the previous decade combined, and that is not a good thing, of course, for the agency, but ultimately, i think, for the american public. it's difficult to pinpoint what the cause is, but what i can tell you is that there are a lot of cases in which, for example, a republican commissioner will make a suggestion to a proposal and be told no. that is a red line that we are not going to cross. yet later when a democratic commissioner makes precisely the same suggestion, that suggestion is accept ised no questions asked. that's not the way it should be. a good idea doesn't have a part affiliation, and i think the proposals we have should be
considered on the merits. give you one example. in december we adopted a proposal on the incentive auction. one of the 11 proposals i made that were rejected was to simply extend the comment deadline to give parties a little additional time to digest some of the very complex rules we were proposing. i was told, no. that was a red line, it could risk delaying the auction. in the quiet of the consumer electronics show earlier this january, i found out that, lo and behold, the agency did precisely what i had asked. that just doesn't b speak well i think, of the agency when we end up shutting out certain commissioners from decision making. along similar lines, the chairman's use of delegated authority to bypass accountability of all the commissioners, i think is an unfortunate thing. when there is a serious and substantive policy debate, the five commissioners who have been nominated by the president and confirmed by the senate should be on the record as voting for or against that proposal. we should have a chance to make our views heard, and to the
extent we are denied that opportunity, it's not just to the detriment of the republican commissioners, the democrats on the eighth floor want a say too. all of us have good ideas and at the end of the day -- based on my experience prior to 2013 -- that a consensus product is ultimately a better product. it's more likely to stand up in court, more likely to have political legitimacy, more likely to stand the test of time and that is certainly the spirit i'm going the continue to carry into the future regardless of affiliation. >> and just one follow-up question. it sounds like you feel a lot of the problems have really come from the chairman's office. i'm not trying to -- do you see anything that you, the republicans, have done that maybe -- where there's ways that you could make the process smoother as well, or do you think, i mean -- you know, some say that you guys are too that the two republicans are too quick to vote no on things and that's why you're not getting, there's not a lot -- you laugh about that or smile but, i
mean is there, i'm just, i feel like i have to ask you that question. >> guest: so i smile in part because historic complaint about the minority commissioners was that they didn't vote fast enough or at all. but if you look historically over the past two and a half years that i've had the privilege of serving, i've consistently made it a priority to vote early on items sometimes even before my colleagues have voted on them. and that's because i don't think issues should be bottled up in the agency for years on end as has been the case. secondly, you can pick virtually any issue you want over the past year and what you'll find is that more often than not -- actually, i would argue almost all of the time -- i've put a constructive proposal on the table that would allow us to all claim victory, to all have a role in shaping the final product to make it better, to make it more litigation-proof, if you will. but it was ultimately rejected for, i consider, arbitrary political reasons. and this is not just the incentive auction. the e-rate program, for example.
i was very public for a very long time about the proposal i had on the table which was one that i think would have had bipartisan support. but i was told that proposal was not going to be considered. so i said okay working within the chairman's preferred framework here are some suggestions i have. ultimately, a lot of those were declared red lines even though the chairman accommodated some of the democratic requests which were identical to mine. and so i think how to break that impasse? what i can tell you is i'm never going to stop putting creative and innovative and constructive proposals on the table because i continue to believe that communications issues are not political issues. good ideas don't have a party affiliation. and so long as i have the privilege of serving at the agency, that's the spirit which i'm going to embrace this job. >> host: february 5th, the fcc receives the chairman's mark on net neutrality and february 26th is the scheduled vote on
that issue. howard buskirk, ajit pai, thank you. >> guest: thank you. >> c-span, created by america's cable companies 35 years ago and brought to you as a public service by your local cable or satellite provider. >> here are a few of the comments we've recently received on the state of the union address. >> i heard a lot of great things about, talking about science and nasa, and as a scientist myself, i can really appreciate the president's position on expanding nasa's role. i've heard that before, and i know there's a lot of great people there who do very good science. yeah, it's exciting to see the president looking towards the future instead of the past. >> a couple points i wanted to raise about the speech tonight. i thought that rebuttal he gave to the republicans off the cuff was really really speck tack hard. i haven't seen -- spectacular.
i haven't seen a state of the union improvised for a long time. i'm happy we're finally getting our act together and opening up trade with a nation that's been in our, you know very important in our hemisphere since our inception. but then, you know, the same thing could be linked to foreign policy is the fact that we've been doing the same thing, you know in afghanistan and iraq and just basically the middle east as a whole and we've been getting the same results. every ten years we go into a country, and then there's a repercussion, some kind of blowback, the cia talks about it, and he even mentioned how he was using drones responsibly x. the idea that, you know, he's killed maybe hundreds if not thousands of people without congressional authority -- >> all right well, i've got a few things. a few things about the president's state of the union address. you know, some of the stuff that's been leading up to it, i've actually got to argue the opposite because they have said that, you know unemployment has gone down the economy is
improving. i don't think that's the case because people have to remember with unemployment you can only have your extension for so long, and then you don't qualify for unemployment benefits. so when those people get dropped from unemployment then they're no longer counted as unemployed. so that's not really an indicator of the economy going up that's just people falling through the cracks and being forgot about. so if you look at it from that perspective, the rate of unemployment in this country is probably ten point something high or than what it's actually being estimated as as far as, you know, the figures from what they're showing. >> and continue to let us know what you think about the programs you're watching. call us at 202-626-3400. e-mail us at email@example.com or send us a tweet at @ @c-span@comments. like us on facebook follow us on twitter.
>> the supreme court heard arguments on tuesday in a case which challenges states which bar judicial candidates from directly soliciting for campaign contributions. in williams yulely v. florida bar the court decides before the end of the term in june. this is an hour. >> we'll hear argument next in case 131499 williams-yulee v. the florida bar. mr. pink cuts? >> thank you, mr. chief justice and may it please the court. florida -- [inaudible] contributions that were completely lawful under florida law. the first amendment bars florida from prohibiting that speech. threshold question, of course, is what standard of review. we submit that strict scrutiny
applies, the standard that was applied by the court below for several reasons. first of all, this is obviously a content-based restriction. it turns on content of the speech does it solicit a campaign contribution. my friend relies on this court's decision in mcconnell to justify applying the closely-drawn scrutiny standard that has sometimes been applied to campaign contribution limitations. that standard does not apply for several -- >> mr. pincus, whatever the standard suppose the florida rule was simply no face-to-face solicitationings. that's it. -- can solicitations. that's it. would you concede that that would be a valid regulation or would that fall on the first amendment as well? >> well i certainly would concede it in this case, your honor, because my client didn't engage in any face-to-face
solicitation -- >> i want to understand your view of the scope of the first amendment in relation to the selection of judges. >> i think the state could adopt a prophylactic rule prohibiting face-to-face solicitation certainly one-on-one solicitation and perhaps as some states have done solicitations in larger groups. there might be some applications of that rule that were that made that rule invalid as applied. for example, a face-to-face solicitation of one's relatives that have nothing to do with the state at issue. but i think the first amendment would certainly allow the adoption of that -- >> but the first amendment would not allow that for the candidate for political office. >> exactly. >> so you are making, you are recognizing that there's a difference between judicial office, the first amendment allows the state to do things with respect to the election of judges that it wouldn't allow
them to do with respect to the election of members of the legislature. >> well, i guess i would amend my answer to say that the first amendment might allow a ban on some solicitations on a coercion theory. let me step back. there are three government interests that have been advanced in this case -- >> no, but i just asked you, you gave me an answer and now are you telling me that that answer was ill-considered? that is, a ban on face-to-face -- [inaudible] by candidates for judicial office good or not? and it, would it be judged by the same standard as a ban on face-to-face solicitation by political? >> i think it would be judged by the same strict scrutiny standard, but i think that the interests that the government could advance in support of that restriction in the judicial context, one of them doesn't exist in the legislative context, the enter in
preventing -- the interest in preventing bias or preserving impartiality, and one, the interest in preventing coercion of the person solicited i think, applies somewhat differently in the legislative context than it does in the judicial context. so i don't want to say that there's no ban on solicitation that would be permissible in the nonjudicial context. there is a federal statute that bans congress from soliciting members of congress from soliciting federal employees, for example -- >> but if you had the statute that you said would be valid barring face of the of -- face-to-face discrimination what about a personal one-on-one letter? how is that different? i can just see the court having to say well, this is i guess, underinclusive. and then if we say well, the one-on-one letter, that's almost like a personal solicitation, we can ban that, then what about a letter to five people? we're off to the races.
>> i think -- >> it just seems to me when you make the initial concession, you have a real problem in determining how to make this not over or underinclusive. >> i don't think so justice kennedy. i think the court in other contexts is has certainly drawn a line between written communications and oral communications in the lawyer solicitation context, for example. the court has dawn that distinction. -- drawn that distinction. so i think there is a reasonable distinction that it says whatever the rule might be, written communications are fundamentally different if the enter that the -- if the interest that the government is asserting is coercion. >> which is it? if we meet somewhere and i take out a tablet and write something down and hand it to you is that written or oral? >> well i guess i would say in person, your honor. >> in person. >> i think the, i think the question here -- again, just to back up for a minute -- is i think in all of the contexts
that we're talking about here, the interest is whether the person solicited is being coerced -- >> back all the way up and give us the three interests that you started off saying were at issue here. you never did get to that did you? >> i didn't. sorry, your honor. >> oh, it's your fault. [laughter] >> there are three interests. one, the interest in preventing quid pro quo corruption; one, the interest in promoting impartiality/preventing bias and, third the interest in protecting person solicited against coercion. >> what about the interest in the judicial thinking anity -- dignity? >> well -- >> stuff we don't let judges do that we let other people do such as it's at least a tradition i'm not sure whether it's in any ethical rules, but let's assume it was in ethical rules that judges do not respond in op-ed
pieces to criticisms of their decisions. all right? john marshall did that, but he did it anonymously. [laughter] let's assume that that rule is written into judicial ethics. would that stand? >> well, i think there is such an enter. we acknowledge that in our brief. i'm not sure, i don't believe that it suffices to support the prohibition here for several reasons. first of all -- >> no, no, but answer my question. would that be okay? >> would it be okay? >> an interest in judicial dignity? there are certain things that are -- [speaking in native tongue] as we say. >> with i think there is such an interest, and i think it's executed principally through the act of judges as judges and maybe as best analyzed under the government employee free speech rubric. so it doesn't necessarily have to reach a compelling interest in order for it to justify some
reductions on the judge's speech. i think in this context to the extent that that interest doesn't apply for several reasons. first of all, we're talking about the campaign context which is different. second of all, to the extent the interest would apply here a fundamental principle of florida's regulatory scheme is that judges may write thank you notes for contributions. so they can say thank you, but they can't say -- >> well if florida law didn't let them do that, what i'm trying to find out is if you think you can have different rules for judicial elections than you can have for political elections. we're told by the florida judges who filed the brief that they had a horrendous problem with corruption. and they wanted to get a handle on it. so they made this small step. >> well -- >> and they --
>> to answer your question, justice ginsburg yes, there can be different rules because two of the interests i mentioned -- the interest in preventing impartiality and preventing can coercion -- apply differently in the judicial context. so i do think that in your hypothetical could florida prohibit in-person, one-to-one solicitations or in-person solicitations to a group of some size as states have done, yes i think they could do that and i don't think that could be done for legislative or executive branch candidates. >> suppose a state's view is we want our judiciary to be above the political fray so we have this kind of restriction on putting themselves forward as a solicitor. >> well, a couple of answers, your honor. i think the problem with a state having that interest is the state has adopted an election
system that puts judges in the political fray. so if a court said in its opinion in light some things necessarily come with the fact that a state has made the choice to choose judges via election, and that includes the fact of an election and some first amendment requirements that apply to election-related speech. so i think that's the problem with making that decision. a second problem is the particular scheme that florida has adopted here which as i said does allow the judge involvement in the contribution system. the judge can know who solicited, can know who gives and can write thank you notes. so once florida makes those decisions -- >> but how can the judge not know? especially if some states want disclosure as the judge is supposed to not read the disclosure list? everybody else does, he doesn't? >> well, there are some state that is prohibit judge from finding out who knows.
minnesota, for example -- >> it seems -- >> -- has prohibition. >> -- that's just unworkable. >> i think there's a question about how effective it is. but i do think that undermines, underlies what's really going on here, that any incremental benefit that is served by to a prohibition on solicitation given the reality that the judge knows -- and especially given the fact that -- >> so you're suggesting that there could be a mass mailing, but the judge somehow could be prevented from knowing who responded? >> well, that is the rule in some states. and -- >> i'm asking you whether or not that is consistent with your theory of where we can draw the constitutional line. >> well, i don't -- can i think the court could conclude as the eighth circuit did that in minnesota, a state like that where the judge doesn't know there's even less of a reason to
prohibit solicitations because the judge isn't going to know who responded. >> honest midwestern states they're not going to tell -- [laughter] >> i go back to judicial dignity coercion? very, very very rare that either by letter or by personal call that i ask a lawyer to do something whether it's serve on a committee help organize something, do whatever it is that i'm asking that that lawyer will say no. isn't it inherent in the lawyer/judge context that people are going to say yes? >> well, two -- i don't think so, your honor. in this, in this solicitation, although petitioner was a
candidate, there was no response. >> well -- >> but i, i think -- >> she was unknown. but i'm talking about this is, this prohibition is dealing with an issue that does happen in the vast majority of cases. >> i guess here's the contrast your honor if i may. i guess the question is what's the difference between that letter and the following letter that's signed by the members of the committee which was totally permissible under florida law? dear joe, as an attorney frequently appearing before the county clerk we're sure you're concerned with the quality of the jewish judiciary. judge jones personally asked us to serve on his campaign committee, and we're writing to ask you to contribute to his re-election. as you know, florida law permits judge jones to thank contributors. i think once all those things are permissible, who makes the solicitation really doesn't make that much of an incremental difference -- >> well -- >> in an area where we're talking about competitive -- >> that's what you think, but i
can actually see how receiving a signed letter from the judge saying give and/or a telephone call or a personal meeting has an incrementally greater impact than a letter. i get, even today i get a whole lot of campaign committee letters, and i just throw them out. if a candidate calls me or reaches out to me, i tell them i can't talk to them, and i can't give okay? [laughter] but i have a reason and an excuse. a lawyer doesn't have that reason or excuse. >> and i think that's why at least one line that i think iser permissible -- is permissible in my response to justice ginsburg is a line between written communications and oral communications either one-to-one or in-person communications one-to-one in a small group. i think the coercive effect to the extent there is one is
clearly greater there. and the question in the first amendment context where we're talking about poor critical speech where the court iraq newsed both in -- recognized both in the charitable contribution causes in schomburg and reilly as well as many mcconnell that the it is the intertwining of substantive messages and requests for contributions that make both effective. where you're severing that, there has to be a really good reason. and in the written communication context at least we submit as judge for the sixth circuit and as the 11th circuit and as the ninth circuit have found, there isn't enough there. >> is there anything in the florida rules, i couldn't find it, that would prohibit judge jones in your example from giving the committee a list of people to contact? >> there is a rule that says that judges can't or candidates can't do indirectly what they do directly and i frankly, don't
know whether the florida bar would interpret p the giving of a lift to circumvent that rule. >> the problem's many a way to decide this and it's a sort of a jock but it's so true in the ex-- a joke but it's so true in the experience that i have my brother in the district court, in state and federal systems that the normal response to a lawyer by a lawyer to a judge in any minor request or, you know something normal the answer is, yes. that's until they get out the door. i don't know what they say when they get out the door. [laughter] but that is such a common experience that when the judge says can you please, yes. that's the answer. and you have to learn how to interpret when they really want to do no. and that's that's almost universal. and i thought that's why they're writing the rule the way they do. when it says "i ask for your
support, an early contribution of 25, 50, 100, 150, 200 made payable to me will help." sincerely, sign my name. the answer to that question is, yes. and if it's the campaign manager, perhaps it's no. i mean, i don't know how to go beyond that, and that's such instinctive and intuitive that i don't know i'm asking it because i want it raised to the surface. and i want to see what there is to say. you can tell me just ignore it, but i want you to know it's there. >> well, a couple of things your honor. i think, first of all, there's not -- i think you have to compare that letter to the text that i read, and it seems to me the fact that the candidates or
the judge's best friend is the chairman of his committee -- >> that's if you're maybe looking for something -- when somebody else writes the letter, somebody else makes the request. this is so instinctive that my inis it's not the same thing finish. >> but they're making the request on behalf of the -- >> right. >> i think that's the critical factor. >> the judge doesn't just go to a lawyer either. the limitation is not solicitation of lawyer, is it? >> it's -- >> it's anybody which really makes me think it's more to do with judicial dignity than the corruption stuff we've been talking about. you can't solicit anybody. >> absolutely, your honor. and i think that's one of the -- >> isn't the proof of the pudding and what justice breyer is saying in the statistics? one of the briefs mentioned that those candidates who can
fundraise personally do appreciably better in collecting money than the candidates who have to go through a committee. so what would be the difference other than the fact that there is some form of personal coercion in the presence of the judge asking for the money? >> i don't think so, your honor. i think the difference -- i mean obviously, i don't know where about the statistics come from, but even assuming that the statistics are right, it seems to me many a system where -- in a system where we vote for a person, a message from that person that combines what they stand for with the request for a contribution makes that request for a contribution more effective. not because it's coercive, but because it's tied to what the person stands for. and those parts of message are effective when they come from the person themselves. >> i think you'd find the same statistics true with respect to
political candidates, that they to much better when they put the -- they do much better when they put the arm on you personally rather than having someone else contact you. i can't imagine that being any different. >> well, that's the point, isn't it? >> well, i think it's only the point -- i'm sorry. i think it's only the point that it arises from coercion. and as i just said is, i'm not sure that that's right are. i think we don't know. we also don't know whether those statistics involve states that permit one-to-one, in-person solicitation which, obviously, is quite different from the sending of a letter. and in those states -- and there are ten of them -- obviously, those, that is fully equivalent to the solicitation process in a legislative or executive race. so i think we don't quite know, but i think it would be drawing the wrong conclusion to say the only possible explanation is can coercion. i think there are a number of other likely explanations.
>> mr. pincus, i think it follows from what you're saying that the federal canon that applies to us is unconstitutional at least as respects to written communications? so we're not allowed to put our name on fundraising materials and things like that? i take it you're saying that, too, that's got to go as well, is that right? >> no, i don't think so, your honor, as i said in responding to justice scalia, i think the leeway that the federal government and the states have to regulate the judges and other employees because of inconsistency with their duties this court has said is much broader than it is and does not have to satisfy the compelling interest test as this particular restriction does. so i don't think it at all follows. >> i'm sorry i really didn't get that. why does it not, why, why is the restriction on us constitutional whereas -- >> you're a federal employee. you're government employees. and so the court has said in
pickering and other cases that the government -- whoever the responsible rulemaking authority is -- has much more authority to regulate the speech activities -- >> florida could regulate the already elected judge when he's running for re-election. >> well -- >> i think he could say we have a rule, judges don't solicit period. from charities themselves. so we have a judge he's a state employee. i take it that your answer and in applying pickering to government employee, that the judge can be restricted. >> no, i don't think so, your honor, because i think this is speech in a different category any more than the government can say we're going to use pickering to haven't the solicitation -- to respect the solicitation speech of a sitting congressman or governor. the fact that the state has chosen to choose its judges via election triggers -- >> but, you know, i would think, i would think it's just the
opposite right? that in a case for federal judges, you say there's not really much of an interest. who cares whether i solicit funds on behalf of my old law school. it doesn't have to anything to do with who i'm going to favor who i'm not going to favor. in this case the state can really come in and say, you know the things that we're objecting to the solicitations that we're preventing are exactly the ones that are going to go to whether this judge can be an impartial judge rendering fair verdicts. >> i think that's wrong on two counts, your honor. i think there is, again can where the judge can know who contributed and can write a thank you note, the idea that prohibiting the judge to asking -- >> well -- [inaudible] i'm sorry. >> i'm sorry. contributes in any way to the protection of that interest seems inconceivable if the question is, is there bias. what florida has basically made a basic determination that a thousand dollar campaign
contribution limit is going to protect our interests against bias. and so the question then is are any of these other activities going to create such an appearance? and where the state has said a thank you note -- >> you keep on falling back on that. but, i i mean, do you think it would be allowable for the state to stay, no, even the chairman can't make those solicitations? so you keep on falling back well, they allow the chairman or they allow the thank you notes. so now let's say, you know the state says, look we've been trying to do this because we've been trying to narrow the law in order to accommodate first amendment interests. but if you're going to throw that back in our face, we'll apply it to the campaign chair too, to thank you notes too. would that be constitutional? >> i think if the state wanted to adopt a system of public financing for judicial candidates it might well then be constitutional for -- >> how about the answer to justice kagan's question? >> i don't -- >> oh well i'm not going to
answer that question because we can think about something else. >> i think the answer to that question is, no, because the contributions are still permissible. the line that the court drew in mcconnell in terms of solicitation limitations was it's quite permissible to ban candidates from soliciting contributions that cannot lawfully be made to their committees when there are other avenues, when they can still solicit contributions for their committees. i think it would be quite a different situation to say, yes we're going to have an election but no one can solicit money for the campaign committee because as the court has said money is essential to get the candidate's message out. >> but the whole effort on florida's part is to make the selection of judges not like the political context. and what you're saying is that they, if they choose to elect their judges, they can do it only one way, and the same rules apply to the judges that apply to candidates for the state
legislature. >> well respectfully, your honor, i don't think so. i think there are two distinctions. one is i do think once florida says thank you notes are okay, it can't ban solicitations. it might have a better chance to justify its state interest if it didn't do that. and i do think, as i said, the coercion rationale applies differently with respect to judges and would permit a limitation that doesn't apply. if i may mr. chief justice, i'd like to reserve the balance of my time. >> thank you counsel. mr. richard? >> mr. chief justice and may it please the court, i'd like to begin by responding to justice alito's question. the answer is that there's nothing in florida law or in the canons that prohibits a candidate from giving names to the committee for the purpose of the committee slit -- soliciting from those individuals. what the florida canon is decided too is something this
court has recognized previously in buckley and mcconnell which is to cut the direct link that creates the quid pro quo relationship by keeping the judge from communicating or the judicial candidate from communicating directly with the person that he or she desires to -- >> so it's a thank you note. >> that's correct, your honor. i think that finish. -- >> i mean once you say you can send a thank you note, what you've just said is not true. >> well if what we focus on which is what my colleague and opposing counsel focused on is the intimidation issue i agree with you. either the intimidation issue or the effort to to curry, to save curried favor, i agree with that. ..
>> i think what we deal with here in response to question is similar in kind to this issue of how many people are being addressed. this court has said that in circumstances like this the court has no scalpel, to use its words, as to where to draw the line. the question is which judicially manageable. so the question then becomes where there's going to be a line drawn, is it unreasonable for the state to say we're just going to prohibit it, when the going to try to micromanage who
-- >> there's a difference between micromanaging and over inclusiveness or under inclusiveness. this could be easily limited to litigants or lawyers appearing before the court. >> it could be put into question is what the parents apparent to the public is, and the second question is, because it's always a question in first amendment cases, how does this way against the imposition on the candidates first amendment rights? this court has recognized, it did in both buckley and mcconnell that one of the reasons that it is built it and one of the reasons it applied a lesser standard of review was because it said that the imposition on the communicative value of the contributions was marginal. in this case it's even more marginal. >> be careful with that line because there's a number of justices on the court that dissented from that come and citizens united has brought that into question.
so assuming that's not the argument what's the better response? >> i understand. i understand, your honor. perhaps it was not the best way to lead into it but my point -- >> you only need five votes, and there were five votes there. [laughter] don't be too intimidated. >> i'm trying to get your vote as well, justice scalia. i haven't reached that point yet. i understand it's a high mountain to climb. but the point is that i'm trying to make is that this is an extremely minimal imposition of the candidates freedom of expression if there's any imposition at all. >> could florida apply this cannon to candidates for political office? >> are using to get? >> yes. in florida says we think it's such a good idea for the justice, we want to make it across the board no candidate for political office and make a direct appeal for money.
>> i think it would be far more difficult to convince the court that there would be constitutional, and here's the reason. it's because of what justice kennedy has recognized as what he coined the good responsiveness and the bad responsiveness. in a democratic society, and a republican form of government, candidates in the other two branches are expected to commit themselves in advance to certain positions and are expected to comply with that once they're elected in order to do what their supporters expected them to do when they supported them with financial contributions and otherwise. when we're talking about judges, there is no good responsiveness to a supporter or a contributor. judges are expected to be impartial regardless of whether or not -- >> really? a judge can't campaign, you know i'm going to be tough on crime? >> that's a different issue. >> why? that's good responsiveness.
>> that's responsiveness to an issue and i think judges to have preconceived positions but not responsive to individual. that's the difference and it's a big difference. >> is there really the prospect of the appearance of partiality if you have a radio ad with the judge and says, you know this is my philosophy, please send me a contribution? is anybody going to think that judge is going to be partial to one side or another? >> i think that two things are occurring there. the answer to question is, i can't presuppose is going to think he's partial, who is an. i understand your point. certainly didn't think he's partial to a given individual at that stage, but that solicitation is a solicitation of a coed. >> -- quid. >> i think that is a widely shared perception and i think florida has every right to say
we want to further that. what is your distinction between what i took as an important argument on the other side, and maybe you've said it already but i want to hear it again. florida lets judges write thank you notes for contributions so there is direct contact and the person is given the money knows that the judge knows that he gave it. >> that's right. >> all right? what's the difference between that and this rule, which says that the judge cannot write to that individual in the first place asking for the money? >> i have several answers to that, your honor. >> just one would be enough by want to know what they are. >> i want to use every weapon i have in my arsenal. the first answer is that at the time that the money is being solicited, the contributor if it is solicited 33rd person doesn't know whether the judge will ever find out.
he can find out that the person making the constitution -- contribution doesn't know whether the judge will ever find out, whether he's ever going to receive a thank you note or not. >> is unlawful under florida law to put another written by the campaign manager, and i will tell the judge? >> it's not unlawful. >> all right. very well been. he might not. >> but there is -- >> watch the second one? >> my second argument? >> i want to know what the differences are which is a main point i was argued that once you say they can write a thank you note, and, indeed, as you've added, and the initial letter you can say and i will tell the judge? once florida permits of those things what is it that florida's current seven c. and trepidation adds to that? and if it adds nothing of
significance, why is it constitutional? that's their whole argument. i want to hear your responses. >> that's the under inclusiveness argument, and my response is that the under inclusiveness argument has never been applied by this gorgeous i -- >> i would prefer maybe there is no answer. one introduces it does exactly the same. it has nothing to do to do with every problem. i've got the answer. do you have any answer that says it does have something? if so what? >> i believe that florida could prohibit the thank you note as well but it doesn't change the fact by not prohibiting it does not undermine the fact that my telling judges that they cannot personally face-to-face or by buttonhole or by telephone call solicit it that it does reduce significantly the public's impression of the fact that there is a quid pro quo.
>> if you write a thank you note, you are not a mendicant. you are not going around holding your head out asking people for money. but you're not relying on that, are you? you're not relying on the judicial dignity, the dignity of the office that is held or sought? that that has nothing to do with florida's rule. >> i'm not relying on that, your honor. i believe if we talk about expressive conduct that it's unlikely that this court would uphold based upon the dignity of a given job -- given judge. it's possible that is the actual to the point where it undermined the public's confidence in the judiciary as a whole, it might be sustained. but i agree with you that if all we are taught that is the dignity of a judge who is going around with a hat i think that probably would not be sufficient for this court to uphold it. >> i thought the whole idea of the floor supreme court when
they adopted this rule is just that, that they wanted to put judges above the political fray, so they didn't want them to seek contributions. call the dignity, call the integrity of the judiciary, call it the public shouldn't perceive of judges as being political officers, so we shouldn't say an election for a judge is the same thing as an election to the legislature. the whole idea is to put the judiciary and a separate category. i thought that was florida's idea. >> i think that's true, your honor. it's not only florida's idea. i think it clearly reflects a culture of this nation because virtually every state has adopted significant higher standards of ethics for their judicial branch and for the other two branches. i think that that goes to chassis kids to stage between good and the bad responsiveness which is -- >> council, i think you answered justice breyer a little too quickly.
if the letter into what i'm going to tell the judge who gave you money, and might be a violation of the of the code that doesn't permit a candidate to try to circumvent the personal solicitation rule. >> thank you, your honor. i agree with you. [laughter] >> and number two you have started i think in ensuring the question of the quid pro quo difference between a thank you and the initial ask. >> yes. and, of course the one area where this court has consistently recognized that the state can validly regulate contributions and solicitation is in its effort to break the direct quid pro quo the direct communication between the judge requesting the money -- in this case a judge as opposed to -- given any other two branches
the court has recognized that but the judge requesting the money directly from the person who would be contributing. and when one editions what does not exist in florida and most states at the current time, which is a judge be able to pick up the telephone or visit any lawyer who ever appears before him, or for that matter any nonlawyer might end up appearing before him or before, and asked for a contribution and compare that to a third person saying to a voter or a contributor my friend joe smith, is running for judge and i would appreciate it if you would give me money, i think it would be difficult for anyone who has lived in our society for any significant period of time to say that it is not a significant difference and the public recognize that. and the effect of its -- >> we have before us a case involving a particular person but she did something and she was disciplined for it. don't we have to compare what
she did and some, the thing which is regarded by the florida law as being unethical, and what she could've done, and see whether the incremental difference has any significant relationship to any interest that this rule is supposed to serve? was there a greater danger of quid pro quo corruption or the appearance of corruption or bias or coercion, the difference between what she did and what she could've done? and what she could've done as understand answers is the following, she could have, let her could've been sent by a committee and the letter could have said that the petitioner gave us your name and asked us to solicit a contribution from you, and that's what we are doing. the letter could either say and we will let the judge and no if you get a contribution, or the candidate, and she can write you a thank you note she will write you a thank you note if you
contributed. you speak for the florida barcia said it would be okay to put that in the letter, but if that's not, at least you put in the letter and under florida law the candidate can see the list of people who contributed. so those are the two situations. why was there any greater damage done by what she did as opposed to what you admit she could've done? >> i would say the greater damage again goes to the fact that she is personally and publicly requesting a quid from people can be expected to appear before her. and it is florida's concern over the public's reaction to that, which i would suggest is a fair concern and this court has done in the other two branches it is a fair concern over the public's confidence in the judicial system. >> it's not just confidence in the jeep -- in the judiciary, is the? to ask for a judge to ask for a quid puts pressure on people to give it.
that is a different evil man they're simply knowing what happens, and i would say probably worse. to send a thank you note is a form of politeness that creates knowledge, but does not do the same degree put pressure on the person to contribute. now, is that fair or not they are? and don't just say yes because you think it's on your site because i'll have plenty of people point out to me that it isn't necessarily a good judge -- a good argument, if it isn't. >> your honor, i think it is clearly a good argument because it's difficult for me to give you another reason because you said it so eloquently. but if you believe there's a significant difference between a judge requesting specifically a contribution or later is saying thank you for the contribution to when you add to it what if the letter said the judge will know about this later, that merck use the water a bit
although there's no evidence of -- >> mr. richard, there's something the other side has said about your position and i'd like your answer to it. that is that what you're advocating will help the people who are already in the judiciary, the people who have lots of money so they don't need contributions from others, the people who will be hurt are like ms. yuli, who is trying or the first time. in other words, the florida bar has set up a system that works in favor of incumbents, yes, current officeholders and the rich. >> i disagree with that your honor, and i find it curious that the petition would suggest that if we take the restrictions off of incumbent judges so that they are now free to call lawyers who appear before them or litigants who might be appearing before them and ask
for money, that that wouldn't give the incumbent an enormous advantage over non-income but judges. it seems to me that it would. we are also dealing here in an area in which there is evidence either in the record or in the literature to suggest that it makes any difference and also -- >> i'm sorry but up to this point you in sync with a significant difference it makes whether someone can solicit in person or not, and that's why you've drawn the line there. now you're telling us well it doesn't make much of it if it's at all. it seems to me that it's self-evident, particularly in judicial races where prohibiting a form of raising funds is to the great advantage of the incumbent. because the only way and most judicial races, the incumbents are going to be challenged if you have some of you can get their own distinct message out. >> i have two responses, your honor, and excuse me if i didn't clearly express myself and my
response to justice ginsburg's question. what i'm saying is clearly when you tell an incumbent judge that that judge can personally solicit money, that's going to get an incumbent judge he was far more intimidation power and advantage over non-incumbent. and asked a wing which is going to get more or less advantage it's difficult answer that question, and generally this court doesn't find itself in the business of equalizing the playing field any case. so i don't know that it makes any difference. but the other fact is that we have no evidence in this record or in the literature or in the case law to suggest that this is a factor. under any circumstances. the other thing i'd like to comment, if i might go back to the question that justice alito asked me earlier, is i think that there is another linkage here that's important, which is this. if you look at the differences in the impact upon this
petitioner's free speech between sending a letter to one person or personally confronting one person and, on the other hand, sending it to five or 10 or 50 people, if it would even be manageable to make a distinction, it doesn't move the free speech needle in this case one iota because there's very little impact on that candidates a free speech. no matter how many people that candidate is talking to the candidate can still see anything he or she wants to about qualifications, about issues, about cases, about anything he or she wants to. this court said so in white and the florida canon doesn't attempt put any restriction on the. the only thing it says is you can't say to me, give me money. and this court has recognized in buckley and in mcconnell that the only communicative value of
saying, give me money, is that when you get money it enables you to broadcast your message more widely. the court has said that that only rises to constitutional level when the restriction is so great that you can broadcast your message reasonably. here the committee can raise money, and we have no evidence again in the record, the literature the case law that -- >> where did we say that? i don't know the case that says that, that it's only bad if the restriction is so great that you cannot broadcast your message reasonably? >> no, that was -- >> that's the only test, you can have all sorts of campaign restrictions so long as they do not prevent and we are going to sit in judgment about whether they prevent the candidate from -- >> no. whatever for the -- >> what case are you referring to? >> what i refer to is the discussion in buckley and when he said that the restriction on
campaign contributions and the amount of the contribution, that it's communicative value was in the ability to build him a broadcast the message, and to delay became constitutionally significant if it was so draconian that the person did not raise enough money to read would be able broadcast the message. that's not the wording but that's the essence of what the court said. my only point is there's nothing says just that can seven see one's methodology is such that a candidate cannot raise enough money to be a viable candidate. and so what you're left with is no imposition of pre-chablis on a candidates expressive ability. and i think you fairly have to connect that to a florida on the other hand, is trying to avoid which is disappearance with quick quote pro and the appearance of corrupt influence which is a significant -- >> all the first amendment requires is not that you have an unlimited capacity to speak, but
you'd be able to speak a reasonable amount. is that what the first amendment demands a? >> i think that you be able to speak as much as you desire -- >> as much as we think is reasonable, we the judges. >> i think that that's more broadly stated thank you but judges have said in the past. >> broadly stated as you stated it, i think. >> no. i think it's as much as you desire to speak until he reached the level where you have interfered with another substantial state interest. how substantial that has to be depends upon the standard of review that the court applies. >> i still don't see how that's inconsistent with the rest of your argument. what you've been saying before is it's just a little bit that we prohibit, so don't worry about it. the prohibition was limited to the important area. it's face-to-face that is important. and now you're saying it's no biggie because they can do all these other things.
how do you reconcile those two positions? >> i'm not saying it's no big deal but i don't think would ever say that when we did with free speech. what i'm saying is that this court historically has weighed the degree of imposition against the substantial interest that the state is attempting to serve. in this case the state asserting an interest that this court is recognized, at least in the area of the quid pro quo, that the state has not only -- >> where does it come from justice shall not be sold nor shall it be denied? that's at least 800 years old. if that defines the role of a judge, which i think it does you are saying that it isn't. you do look to the degree to which you are interfering with the free speech, which is some degree some and it's not speech, it's really how you solicit money. and on the other side how that interferes with that basic role of the judge. so then is it not relevant?
at the interference, even with raising money which is that one degree from speech, is small. >> i believe it is relevant. i believe that this court and almost all of its major first amendment cases has asked that question. >> 800 years ago judges were not elected. i appreciate the challenge you're under. your kind of backing and filling the the fundamental choices made by the state when they said we are going to have judges elected, and you are trying to patch the problem there. you have a situation with the people in the state has said we're going to have judges elected and recognize you can contribute to judges because there are contradiction limits. it seems to me you're under great burden in trying to get how you're going to fix that without contravening the first amendment. >> it is a great burden. >> why? doesn't change because you elected a judge, that you're changing the fundamental role of the judge? >> i don't mean that it's a
great burden to make that point. what i mean is that we have an election of judges, which many people think is a burdensome system for selecting judges for a lot of reasons. but the fact is we have that and florida under the united states constitution is entitled to have the. what's more, in order to change the florida constitution, 60% of the voters of florida would have to vote to change it. a substantial number of voters in florida have voted to change it unsuccessfully. what we are faced with is we are faced, as we said in the brief, with the reality that florida is trying to weigh to fundamental constitutional interests and find a reasonable compromise. one is the interest in free speech. the other one is the undeniable interest because it's essential to a stable democracy, of having a judiciary which avoids both the reality and the appearance
of corrupt influence. >> if somebody looked at the contributions to the candidates in an election for a county court judge in florida, what percentage of the contributions would be found to have come from practicing lawyers within the county who appear before the court? >> that's not in the record, your honor. however, studies have shown i think not only in the county court but in all judicial elections that a large percentage of the contributions come from practicing lawyers. and i think that that's where judges naturally seek the contributions. thank you. >> that could be either because lawyers expect judges to respond by favoring the cases or could be that lawyers care more about who the judges in the courts or. isn't that quite natural? >> i think that's true your honor.
>> i'd be surprised if the statistics were any different but it doesn't show any corruption whatever. ages shows that lawyers want the judges and/or more about it than the average citizen does. >> i think that's absolutely true but i think what we're concerned about is the two things that this court has identified in the past, which is avoiding the potential for corruption at the court has found is inherent in the quid pro quo relationship. and as importantly, avoiding the appearance of corruption that the public sees. and if i can address one more thing, your honor because i'm responding to your question, i understand that your honor does not believe that buckley was decided correctly and the day may come when your honor persuades this court to receive from the parts that are applicable here but in the meantime i think that it is reasonable to urge the court respectfully that the same rules that apply or at least the minimum degree to which the court has applied these rules to
the other two branches needs to be applied to the judicial branch. but there's certainly no basis, it would be totally inappropriate to carve out a right that judges have that the court has not accorded the other two branches and this case is an example of where that consistency is important. thank you, your honor. >> thank you, counsel. mr. pinkas, you have four minutes left. >> thank you, mr. chief justice. i think it's important all of the examples that my colleague used about that in holding people in the hall and calling people one on one are one-to-one come in person or in person over the phone solicitations not the kind of written communications that are at issue in this case. i think that's because it is very difficult to say that a written communication fits either of their two interests and i think it's important -- >> suppose i'm a judge and i say dear joe you've been in my
courtroom many times and i hope i've always been fair at and know you're going to be here somewhere times in the future, and i hope i always will be fair and you know i'm running for judge and i'd really like a contribution of $1000 signed judge smith. >> and i think the issue your honor is the campaign committee under florida law can write that exact same letter and can start by saying, joe, as you know -- >> it can't say i. it's a very different letter. >> it can say i am one of the people judge smith personally selected to slit funds for his campaign, and then say the rest. the difference in coercion there is really a measure both. it doesn't rise to the level of the compelling interest. i think it's important to make another point which is my colleague said original compromise. maybe if rational basis applied -- >> a rational basis but i think until citizens united in one opinion, which wasn't majority
in the more recent case, the court had never used the words strict scrutiny and respected campaign contributions. i don't think it's word -- i don't think it's just the words strict scrutiny either ever in respective first amendment limitations in respect to what judges say. am i right or wrong? i'm not positive spin i think it did use strict scrutiny in white, and i think that was just about what judges say there but also his use strict scrutiny standard with respect to charitable solicitations and i think will be an odd state of affairs if charitable solicitations that less protection under the first amendment than election related solicitations, given that election stands at the core. >> if you say that right? >> yes, that it should get more protection, i'm sorry. and just to go back to justice breyer, your question about
coercion, i think it's important to separate coercion and quid pro quo because they get mixed up. quid pro quo and preventing the appearance of quid pro quo corruption is an interest the court is not compelling with respect to all elected officials. i think if you accept my colleagues argument that preventing the appearance of quid pro quo of quid pro quo corruption is sufficient to ban solicitation, then there's no reason why florida couldn't say, such a great idea, we are going to apply with respect to legislators. i think the focus here i think really ends up being on coercion, not on preventing of corruption. >> i'm sorry. your opposite party did make the point that the legislative process presumes influence and presumes coercion, putting the arm on people to help you get into office to maintain a position that you promised you'd maintain.
>> welcome i want somewhere speed is can you point -- i hope you don't someone who keeps a position mood because you gave money. >> e street different question. i think which is bias. i think there's a difference between quid pro quo corruption which is a quid pro quo deal a corrupt deal and judges being unbiased. so i think my colleague refers to quid pro quo corruption because i think he wants to use the course of analysis in mcconnell, which i think is inapplicable anyway but i don't think it's possible to say that quid pro quo corruption should be the basis here. >> thank you counsel. the case is submitted. >> tonight on "the communicators" spent welcome you to this event which were sponsored jointly with -- >> taking live to the brookings institution for look at economic and tax policy. again at the brookings institution, life.
>> coming to an event on dynamic scoring views a little bit like this person will say this and then this person will say the predictable thing and marty sullivan will say this and bob mcintyre will say that jane gravelle will say this. we would not have alluded about today, but our goal today was to move a little bit beyond the conversation about whether dynamic scoring is even the best thing to ever happen to washington or the worst thing to ever happen to washington, and to instead focus on little more on what is it actually mean and how do you do it. and this is of course newly relevant because of the house rule which i printed out and forgot to bring down but which requires the joint tax committee which does taxes, and the congressional budget office, which despite what some people think does not score taxes to
take into account the macroeconomic effects of policies and their feedback effects on revenues. and this is hard. are a lot of people think it's long overdue. there some people who think that it will lead to bad fiscal policy over time. what we're going to focus on today is exactly how can we be done, what assumptions you would have to make them what of the challenges that the jct and the cbo staff face in doing it, how can it be best presented so that members of congress and the rest of us have a clue as to what the analysis does. so this is a bit of an experiment in moving beyond the basic contest in washington would have facts and information to meet debris for how we're going to do this today. we are going to start come on going to moderate a conversation between leonard burman in douglas holtz-eakin about the big picture. leonard of course is now the director of tax policy center and he also was deputy assistant
sector for tax analysis in the treasury in the late clinton years and has also worked at the cbo. doug holtz-eakin is now the head of the american action forum was the director of cbo from february 2003, to december 2005. so both of them have grappled with these issues firsthand. following that we're going to turn to something we are very pleased to have recitation by the staff of the joint tax committee on how they out to look at how they do this and the mechanics, followed by a discussion that my colleague bill gale is one of the codirectors of the tax policy center, will moderate. and then following that and you can't leave before the last event, we are going, i'm going to talk with donald marron, jared bernstein and steve mcmillin about the application of dynamic scoring to build other than tax bill which is also required in certain circumstances by the new house rule. so with that let me invite len
and doug, and we will get started. >> i should mention that if we can keep this on time we are going to have questions after each of the three panels. and in case you didn't notice, there's tv cameras in the back. one is from our webcast other people watching this like and will be archived on the website, and the other is c-span. and we also have on our website a little annotated bibliography that my colleague and friend made it has references to the official document as well as things have been written by each of the people who we have panels today. so let's get started. thank you for being here. doug, i want to start with you
and wonder if you could describe to us a little what was going through your mind when you were at cbo and you decided that it was appropriate to do a dynamic score, that is, to factor in the macroeconomic effects of the president's budget? what did you learn from the episode? >> so it started actually prior to my arrival at cbo. it was pretty clear during the selection process is a something important to members both sides of the aisle, and both sides of the congress, and so you know i went into cbo you know basically with the belief that it was a good thing to sort of look at a policy change and find out all its effects but it did make any sense to me to exclude the growth effects and editing of the a matter of response, you want to look at before and after and everything in between. and the question became windy you do it lacks it seemed to me that the president's budget was
the ideal place to do because it is the most fully specified single set of policy initiative you don't have to worry about the there's still something to worry about and that seemed like a great thing to do. it gave you the right comparison because every president's budget is dynamic score. if you read them from this president, bush, clinton, it always has these numbers are full implications of the president's plan. so that was the right apples to apples compares in my view. the question is how do you do it. that was something that was pretty an charter. there were lots of different former economic model future guidance and i don't think you should think of as anything other than guidance, which is a mechanical exercise. you have to use the models for some help but you never have everything in a model that congress or president proposes. those guys are incredibly
clever. there are always things being proposed that are not in the model. the last issue was the presentation, how to do you present the results that have the committee gave them. they are i think we got sort of a really good solid f. because at that time substantively there was a 2003 tax cut which had some sort of fairly straightforward pro-growth supply side affect and then it was medicare prescription drug bill which is not a pro-growth policy, and women put out the results were basically had a modest net effect. i thought congress would conclude gee, it's not a good idea to offset this growth policy with his big new spending program. instead of the conclude we did it wrong. that was it. >> len, so it seems obvious that congress should consider macroeconomic effects when considering a major piece of tax legislation or spending legislation.
i think the question is what are the pros and cons of actually folding it into the score? that is, the official score that is used to decide whether a particular piece of legislation will comply with reconciliation or some other bill speak with the pros of including a dynamic score is that a sickly it removes the constraint. that the new with the macroeconomic effect was, they could improve the estimates by including it. the con is there are so may cases when they have no idea. a lot of cases don't even know the effect. the models themselves are these kind of stylized general models that are reduced models which means basically they're trying to account in a very kind of aggregate way how they capital and labor effect economy and how taxes on capital and labor affect investment and work effort. those are always based on
estimates that themselves are very uncertain and the aggregate just so much information. in the models you know one of the issues there's uncertainty in every aspect, right? the president proposed last week that we should tax capital gains to death. we've never tax capital gains to death. but indicates that lots of data or we have data compiled by federal reserve board, consumer finances on how much assets, how much capital gains people have in their portfolios. we can make an estimate a probability of death. we can come up with some idea of what capital gains, unrealized capital gains are at the time of death and we know what the tax rate is, we could calculate roughly what the revenue would be. you might have a big variants on it but first of all we know that it would raise revenue at least
before, in that case i think you could say it would raise revenue certainly before including any kind of macroeconomic effect. then if you were to apply dynamic scoring to that issue in the models you would say we're cutting the tax rate raising the tax rate on capital, less savings less investment. that would hurt economic growth. in the real world what we're doing is we are raising taxes on capital but we are also removing the single biggest loophole in the individual income tax which results in huge amounts of unproductive tax sheltering. and we don't have a good idea of how important that is. we know that there's a whole giant industry that is devoted to taking advantage of this this year taxes on capitol hill to kill them until death. and different computing on the assumptions you could conclude that was good for growth or bad for growth it actually don't
know what the answer is. but the problem is that in this case there are going to be people who believe really strongly that one answer or another answer, enormous pressure on estimators in that case. there are lots of examples like the. they did an analysis of the tax reform act of 1986 after it was done. that was a policy which all of us working on tax reform was convinced it was good for growth. larry summers said no it's bad because it raised the overall tax rate on capital. it also levels the playing field, remove a lot of distortion of what different kinds of assets. but the net effect was probably zero but it's hard to tell. >> wait a minute. first of all the rule says to the extent practicable cbo and jct should do this. so presumably that gives jct the right and actually the responsibility to say if
something exceeds the capacity of human knowledge to just say we don't know. i mean i'm sure that's difficult and ensure that won't make a lot of proponents of the bills happy, but if we had to wait until we have perfect knowledge before we use these things, that seems like an un-reasonable standard. so are you afraid that they will be pushed into saying more that they know, or that they just don't know enough to ever do dynamic scoring? what speakers i just looked down at my notes. my notes this is a good thing, removing the constraint, on estimators that the my concern is exactly what you're talking about. they will be pushed, congress will be met if most of the time they say we don't know but i think that's the right answer. the other thing is that we actually do want congress to pay attention to the macroeconomic effect policies. i'm very sympathetic to people pushing for dynamic scoring because we know the numbers
carry more weight than just saying this is good for growth or this is bad for growth. the problem is there are so many cases, the answer should be no you don't know. >> do we know enough to do this? >> we know just as little about this is everyone else in the school. spent i think the argument's greatest i think we know all the less. >> i'm not sure that's true. honestly. we know that the precise and other is exactly wrong. there is no virtue to be exactly wrong by knowing that there might be an impact and sing we will ignore it. i think doing this makes sense. remember this bill would probably not get dynamically scored, the one you're worried about. this is all done in the house rule and should only be done for major pieces of legislation at large, predictable impacts budgetary important. that's one observation. >> the rule says -- >> it's got to be told country
and -- it's got to be 2.5%. >> by $40 billion, right? the most pieces of legislation is not going to apply. it would apply -- [talking over each other] >> this is a sideshow for most of the things but most of what congress does is rename post office is. that's not going to turn out to be a biggie. it's not going to happen very often. you do want to look at it. it is always a scoring issue that the look and research literature and see what the consensus tell you come in many cases you don't know much. i've a long list of things in conventional score better copper be uncertain what we're faced with. those circumstances there's a lot of zeros that you put in. everything back to the aca advocates does we wanted to be of this court the progressive measures in saving money and they didn't. they were mad about it. in my time congress was mad about decisions we made and i
don't think there's anything that changes political pressure. it's the case that scoring matters and it will be disappointed advocates on all sides. i don't think that's different i think the important thing to recognize is that the staffs are not slaves to these models but it's not like have to say the mall is this or this. scorn is a judgment. a judgment art and science at the same time. we should hire high quality people at the jct in cbo an -- and we do. this is not some policy income and number out exercise but that's not the way it works. spent i guess i disagree with the idea that just like doing other scores, the vast majority comes to the tech side that congress scores basically involves first of all there's a data -- >> because we have done these things before. >> can i say something? >> most important where there is the least day. went to the medicare
modernization act there was no financial product in nature that gave seniors financial protection against the cost of their -- >> but you did it. >> sure. the point is when it matters the most you're in the end making some judgments. you are not like changing something you've done a thousand times before. so it's important in those circumstances to recognize you always have a lot of uncertainty. that's all there is to it. >> when you're doing this kind of estimate typically involves a calculation based on only some did and made an assumption of elasticity. in the case of macroeconomic scoring you've got a variety of different models you could use to produce wildly different customs couple of cases you don't even know you have any good basis for the parameter estimates in those models. i'm not saying we shouldn't try to do this giunta saying it's a lot harder than most of the estimates that congress -- >> they are going to do it if
they will do it for big bills and we've learned a little bit. we saw cbo did basically a dynamic score. they can talk about labor supply. that was one that was measurable. but as len points out some of these things will be tricky. i can imagine all the things that estimate in the affordable care act, that they had a dynamically scored that, that would've just made it harder. >> so doug you said that you thought you communicated the dynamic score that you did in 2003-2004 poorly. thousand four poorly to. what advice to give you jct and cbo did as they enter this brave new world speak as i think is a big advantage to actually putting into the formal score. when its advisory and we have this range of models you're basically out there trying to give the a sort of masters graduate court in macroeconomics in three minutes and that's not
easy. if you put it in the score, he didn't come up with a number. they may or may not like that number but it now matters. it doesn't matter -- and matters when it's a number. now they want to know about the number and everyone out there in the research literature is going to want to say something about that number. they might not like it that generates additional research on issues you care about. it forces the staffs to come to terms up there with the number and economics underneath that number. that's all beneficial. but it might not be perfect the first time but putting it into the process actually takes off the dynamics. no pun intended it's beneficial but we learn more about policies because the numbers matter. we their advisory -- >> in terms of the presentation i think it's important and i know jct and cbo thought a lot about this. one thing is i think we should show static as well as dynamic estimate, there's an idea about how much the macroeconomic effects are changing the
results. the second thing is it's important to be transparent about the channels through which the growth effects are likely to occur or believed to occur in the model. i know jct and the treasury and cbo get a lot of pressure for the assumptions they make and they often don't want to talk too much about what's in the models when they're uncertain about them but this is a case where you really are telling a story and art alternate stores consistent with and support to be transparent. i would fall the mall of capital whether games. i was checking this one to see whether we would be snowed out and they put out a forecast and the forecast concludes in a discussion the level of confidence low to medium, medium to high. there some things like everyone would agree that these would be good for growth. maybe we are not sure about the magnitude but we will not be sure of the baggage but at least we're sure there's something going on. other cases where it's really ambiguous. i think it's important to do that. one advantage of doing this is
that it might be a chance for the scorers to tell congress the deficit, particularly in the context of an economy that is close to full employment that deficits have a cost and surplus might be good thing to think about it you might be able to build in from these models some kind of a deficit penalty or a surplus bonus. that would be another level of handwaving but i think it would come out of some models. the other thing though talked about researchers out there. it would be nice if congress would actually try to put someone into research to try to measure these things better. one problem we have in macroeconomics is that the macroeconomics were there to real world policy has very little attraction for academics. because it's really, really hard. you have to do a lot of handwaving. they focus a lot on -- >> something academics never do. >> but you can't just have a little model, aggression and
find investment for how it affects economy. finding a way to encourage academics to try to answer macro, real-world macroeconomic questions as opposed to the kind that lead to nobel prizes which be really helpful. >> this is a different conversation but i'm not sure we are in a great place that's going to take congress to encourage academics to research -- >> i was just talking about money. >> let me ask you one thing before turn to questions. so if i proposed a tax cut on investment that is huge, you and i would probably agree that would be good for growth. but people would say well, a kind of depends but are you going to pay for this? isn't going to be financed or not? if i get the bill on my desk and i'm jct to have to decide, are they going to pay for this amount or do i assume there's some negative effects 10 years
when we blow hole in the deficit? >> the key in scoring is just recognize, it's not forecasting. >> don't you have to make the forecast about what the deficit impact is? >> you wouldn't, no good forecaster or take the march baseline and just for forecast in november because you want to treat all feels the same to it's not forecasting but it's going. which means treat all the bills the same so you can rank them correctly and that means if you're going, and this is a big part what goes on in static scoring, both budget committees, omb, the staff at cbo jct commitments if that figures out what rules will use for consistency in scoring to make sure we get -- >> in other words, they have to decide in the out years whether we're going to have a deficit? >> yeah. and then use the same procedures for all pieces of legislation. >> raise your hand if you have a question so a mic can find you. >> what happens with the deficit
is important but if you think the consequences of the 2003 tax cuts which he said were pro--- progress was that president obama would be elected and we would have high income for taxes basically as a way to reduce the deficit pressure. the net effect, even in the macro mode, presumably within that could. >> from what horizon? >> the horizon of 20 years. >> the score is over 10. >> you are saying -- >> yes, it is relevant. policymakers have been told a million times by cbo that this is something they should care about. but the job is to provide budget numbers for the window that they have elected. you can't cure all problems and a great mistake it for the staff to get this idea that we can somehow tricked them into doing the right thing if we just show them the right numbers. it is a terrible place for staff to go. that's not their job.
>> henry aaron. >> and observation at a question. the observation, doug i think you have given the wrong answer just now. if there is a tax cut eventually over suspending increase, eventually there has to be payment for it either through something on the other side of the ledger or through interest payments to the present site of which is identical to the shift. if you're using a 10 year window, you have run afoul of what you counted at the beginning. you don't want to be exactly wrong because that is exactly wrong, even if it is the legal window. >> let me be clear. >> let me come to the question. >> we did this. so the way that is outside the window you have an offsetting policy and you always use the same one. >> but it has been corporate entity as the effect of the policy. >> no question about it spent well then, the 10 year window is
irrelevant. the question i have is i would like to suggest a practical policy which i think passes the threshold. a restoration of the estate tax as it existed before the 2001 legislation, so a much lower exemption and a higher rate. i think in combination that revenue would be sufficient to pass the threshold. all of which is used to cut corporate tax rates. do you have any inkling as to what the sign of the effect of that would be on economic growth? >> i'm not sure i understand the policy. i won't try to make one up out of my head. >> well, the policy is quite clear. it's an increase in taxation at
the time people die of capital gains as the president has proposed, and a reduction in the estate tax exemption and an increase in the estate tax rate quite large so that arguably if there are effects on behavior these changes would be large enough to affect behavior. i'm not sure what the side of that policy would be all by itself, but i wanted to combine it with using all the revenue to cut corporate tax rates. so that it has a zero impact on the budget. can you suggest that there would be, what the sign of the effect might be of that changed? >> let me simplify the question. let's say there's a huge increase in the estate tax and a huge cut in corporate tax rates. and henry is suggesting it's hard to tell the effect on growth. >> my instinct is that will be positive for growth and would be happy to work through the
numbers. we need, that's what the staff have to go through. [inaudible] >> magnitudes matter. >> if the deficit i'm not sure how the rule works, made we can bring it up later is it net or gross? gross. so if you raise $100 million in taxes and cut $100 million of taxes, the net effect on the deficit is your it's big enough to trigger the rule. [inaudible] >> it would because it's not the net. it's the gross. know, the total. add up all the pluses and minuses and if the pluses are the minuses add up to a big enough swing. we will get to this later. spent is there a regulation -- >> wait, wait, wait. first of all, the people at jct will be able to answer it more precisely how the rule works. short, briefly.
wait for the mic, henry. >> very brief. the answer has to take into account open economy consequences come exchange-rate effects. you may think there's uncertainty about domestic macro models. the uncertainty with respect to open economy models is fast and depends sensibly on the response of other countries. so i think what is on very static ground -- >> if you don't think about what the rest of the world is going to do. so your point is it's even more complicated if you have to have growth. i think we have time for another question the there's a woman right here and then we will go and will have time for questions at the end. you will still have a shot. >> laura blessing. i have a very basic question and then have a question for mr. holtz-eakin. the basic question may be reiterating yours from earlier.