tv Key Capitol Hill Hearings CSPAN October 2, 2015 8:00pm-10:01pm EDT
langua languages. our literature is available in 14 different languages. the website is english and spanish. expanding digital awareness and driving broadbrand adoption. >> 70% of the communities live in the remote of silence. thank you so much. >> thank you. >> tonight on c-span2, a preview of the upcoming supreme court term. and then utah governor gary herbert on how states interact with the federal government. and democratic state legislatures take part part in the annual innovation conference. the supreme court begins its new term on monday. the pacific legal foundation and
the national review previewed high cases the court will consider this year. ramesh ponnuru moderates this hour and 15 minute discussion. >> from the washington, d.c. center. the national review and the pacific legal foundation is honored to welcome you here today with the hurricane coverage and the to hundreds of thousands of people across the country who are tuning in by c-span. we would also like to thank jones day for this nice roof and staff assistance to -- for putting this together. as for plf, our interest in the supreme court mirrors brief attention. we will have as many as eight
petitions pending before the justice involving cases that we have filled and i think that is probably the most of any public interest legal organization. we have seven straight wins in the supreme court. so we hope to extend that string of victories this term. and finally, scoutus' blog has noted we are the most famous brief filers for the court. our guest will talk about the most important supreme court cases on the docket including a couple they will argue themselv themselves, a few the supreme court agreed to hear yesterday and a few on on the horizon. i am going to ask all of you to
take out your cell phones and silence them right now so they don't go off with your wonderful ring tones for the c-span audience. our moderator is here, ramesh ponnuru, he is well known in this audience and the c-span audience. he is a senator editor for national review and a columnist for bloomberg blue and a visiting fellow for the american enterprise institute. he publishes in every prominent newspaper and he is also the author of the party of death, the democrats the media and the disregard for human rights. in recent years, he has been a noted leader in the reform conservative movement and he is
also well known for his writings on the intersection of court decisions, public policy, and the culture. with that i turn it over to ramesh. >> thank you, todd, and thank you all for braving the elements to be with us today. i think it is going to be a great program. i am going to give you a little bit of a sense of what we will do today and turn it over to these capable lawyers. we will hear first from michael carvin who is a partner at jones day's issues & appeals practice, our host, where we focuses on civil litigation against the federal government and the lead counselor on friedrichs v. california teachers association which may come up and has fought numerous supreme court cases including the recent challenge
to the ford affordable care act and the decision with oxly accou accounting board overturning the federal government's blood pressure to adjust the census and upholding the ban on racial preferences in california. mike was one of the lead lawyers and argued before the florida supreme court on behalf of george w bush in the 2000 election florida recount controversy. he represented state governments, financial institutions, tell communication and energy companies and first amendment and civil rights and statutory challenges to federal government actions. what have you all done? next, we will be hearing from kannon shanmugam who is a partner at williams & connolly's supreme court and appellate practice, where he heads the law firm supreme court in appellate litigation practice. he has argued 17 cases before the supreme court in a number of
areas including patent, antitrust and bankruptcy litigation. he argued several significant security cases heard by the supreme court in the recent years. he has argued a series of high profile criminal cases in the supreme court. he has argued dozens of appeals in federal and state courts across the country and a prof s professor of law at georgetown university. before joining williams & connolly's supreme court and appellate practice in 2008 he served as solicit general to the department of justice and clerked for supreme court justice scalia. last we will hear from paul ciancia a partner at jenner & block's appellate and supreme court practice where he is chair of the appellate supreme court practice and he has had an
active supreme court practice for three decades including oral arguments in 16 supreme court cases involving matters from free speech, civil rights, to civil procedures. and lawrence v texas, the landmark gay rights case, and brown vs merchant are some of the biggest cases he has fought. so with all that, i am going to turn it over to mike to start hearing how our rulers intend to govern us over the next year. >> well, hopefully it will be a little different than last term. i will discuss friedrichs, which without prejudice, i think it is the most important case that has been graded so far and i mean it because it involves the free speech rights of tens of
thousands of federal employees. the supreme court upheld the right of states, and 20 or so do it, requiring non-members of unions to pay what they call agencies fees which is the equivalent of union dues even though they decided not to associate with the union. this is contrary to the principle you cannot be compelled to associate with associations with whom you disagree. the interesting part about the case was they agreed with that in large part. they agreed you could not be compelled to subsidize unions for certain exceptions but they carved out collective bargaining
speech. and they realized that it does involve matters of public concern and divides. but they upheld it pursuant to this case. the supreme court issued two opinions that made uncertainty about the logic underlining the case. in response to that we brought a case on behalf of a number of california public school teachers who don't want to play agencies fees and are non-members in various school districts in california. it is an interesting case in which we had to acknowledge that the case foreclosed the claims we were trying to advance but we wanted to court to rule against us for the purpose of going to
the supreme court to see if the case could be overruled. four members decided to take the case of should this be overruled. so this is very high stakes for the continued enforcement of ideas there is a second question that is important, and that is if they continue to collect fees from do you to opt out and say i don't want them to get my agencies fees or do you have to opt in and say i want to provide them with these fees? that is the second question presented. the basic issue confronting the court, the defenders today have abandoned the rational. it said it was collective bargaining and speech but that is okay. the others are saying this is about wages, health benefits, pensions, and these people shouldn't be allowed to free
ride on the unions because the unions are doing all of these terrific things in terms of wages, pensions and health benefits. we make two points. one is obviously when pensions are basically bankrupting half of the municipalities in the united states this notion of not being public certain defies reality. and simply because a group is advocating on one issue thinking you are free riding on them is like saying i am free riding on the ada because they are lawyers and i agree with them. but a lot of other lawyers oppose them and the notion the government could compel them to pay fees is outside of the norm. they are advocating issues that harm the members.
not evaluating terminations of teachers keeps in place a ridged structure that frustrates the chemist teacher who wants to work in an inner city school. the final point is the free riding rational is weaker in collective bargaining than it is to lobby and that is because the unions have a unique power to e deny you your own vehicle. they have the power to bind you as exclusive representatives of what they want. so as i say, four justice agreed they want to seriously consider if this case should be overturned. i am never making a prediction on how a case would come out. the second case i would like to briefly mention is fisher v. university of texas. probably most people remember
texas's affirmative action program that came up. the nuts and bolts are they have a rule in texas they will take the top 10% of any public school in texas which creates diversity in terms of black and hispanic representation on the campus. they want to layer on top of that a scheme of using race as a plus factor to boost the minority representation. the court looked at it, sat on it for seven months and issued a pile of nothing opinion saying look, you should take this seriously and look at the facts. it went back and fifth circuit said we are not taking it seriously. i will not make predictions. it would be odd for the court to take the case to affirm the
fifth circuit. they could say you didn't do fact finding. take a seriously look. that would not affect the affirmative action. but the decisive vote in the michigan case from 12 years ago upheld this explanation for engaging in racial preferences and there are some views that is court could conceivabable over turn the case. there is a way to overturn the michigan cases or outlaw what the vast majority of higher education systems are doing without overturning either of the michigan cases simply saying, look, if you are going to argue to us, that going --
wrm i am picking the numbers out of air that going from 8% african-american to 10% african-american is important. show us 10% is critical mass and 8% is not. and we need information about the benefits of institutions with 8% black and 10 % black. i think there is no evidence that any of this stuff is really about helping educate blacks and hispanics as opposed to making white liberal institutions feel good about themselves because they have racial balance in their student body. in other words, this is all a lot of rhetoric without substance. this critical mass, diversity and the like.
if you put them to the proof to say prove that critical mass is 10% and that is better than 8% i think that will invalidate the vast majority of the programs. finally and keeping with the jones day info i want this to dwarf into here, we will have a scope under the law of rico which is important and the territorial scope of a number of analogous statues. in quick terms, the supreme court issued a decision called morris which basically said this kind of analysis the second circuit was engaging in which was a test of did it have extra territorial affects is not the
way to go about the analysis. you need to read the statute and see if there is a clear indication that congress intended these subsitv restrictions. and you should not find extra territorial. the precise issue is this term that is un-scalia like that to figure out if is territorial you need to look at the statue and see if the behavior that is being challenged falls into it. if you a pattern of bad acts that happen in the united states, that is enough even if the enterprise is broad. if the enterprise is in the
united states, we can reach you. and the second circuit came in saying it is extra territorial in either circumstance. so i think this case will have a lot to explain what they meant by the focus of the statute in morrison, and it will have a profound affect on the rico cases and a cases where people have are trying to have u.s. courts decide issues that are external to the united states. thanks. >> kannon? >> would you like to comment on my first? >> yes, yes. >> okay. well, i don't really have a lot of disagreement with what mike has said but i will offer a couple comments. i think the first to cases, the
friedrichs and fisher cases are important. i think the writing is on the wall for friedrichs and the court is lively to overrule abude in this case. the majority of opinions were written on if this should be overruled and the majority said the question wasn't presented and thus inviting the challenge mike brought. having said that, i will have the disclaimer that i thought the same thing when the supreme court granted the fraud on the market validity and everyone thought the court would overrule the case and they didn't. so i make that prediction with some about not total confidence. as to the fisher case it is hard
to see how significant the case will be as a practical matter. it does involve a challenge to a very particular aspect of the united states of texas at austin's affirmative action program. it a hybrid program with distinct character isticharacte. i think you should watch for the court saying anything about the degree of the definition of interest in diversity and whether the court or the institution doesn't get much deference in that regard. and second the extent to which the court permits or doesn't perm perm permit quanatative data.
the idea of having critical mass, however it is defined, and whether the court permits an institution to define notions of quantitative data. the notion that an institution has the ability to pick and chose what types of under represented minorities it wants to have. or is it saying the university needs to have underrepresented minorities from affluent communities as much as rural communities. i am not sure the court will rule to go that far but that is their stated rational. so i suspect the court will speak to both of those even if the court doesn't revisit the
principles and if this is p permissable at all. >> fisher and friedrichs have something in common. the same issues were teed up and we don't have the insider view but they couldn't get five votes it seems to me in the prior decisions. so it was justice kennedy in one case and in the labor case it was scalia. they wanted to go further last time and put it again. and take the vote and they know they have five votes. they may not know that but we will not know that until later in the year. it is uncertainty whether they
will end up hunting twice as they sometimes do. >> great. thank you. ramesh ponnuru, thank you. it is a pleasure to be here and thank you to the pacific legal foundation and the national review and the jones day for hosting us. i am probably going to disappoint my partners at williams and connelly in that this is fought going to be a commercial for us because i will not talk about cases we are in in a involved with. i want to talk about a case involving the one person one vote principle. this is a principle the supreme court adopted in a series of cases in reynolds vs sims and the principle that under a equal protection clause a state is obligated to equalize the population of the voting district in order to insure that the strength of a particular
voter's vote is not diluted by placing that voter in a larger district. and the question before the supreme court in evanwell is how do you define the relevant population for purposes of applying the one person, one vote principle? does the population need to be equalized the population of eligible voters or the total population of the relevant districts? and the argument that is being made by the plaintiff in ev evenwell is that it is eligible voters and the one person-one vote is designed to protect the strength of an individual's vote. and by definition, therefore you really have to look to people who can in fact participate in the election in order to determine whether the strength of that vote is diluted. the argument on the other side is complicated and all for a
couple responsibilities. the argument the state is making is that the state has discretion to chose among the various possible alternative populations and that the one person one vote principle is designed to protect against discrimination and as long as the state is choosing a neutral measure, it is not acting invidiously and nazi the discretion to chose the various options. there is an argument the one person one vote represents a broader representation and you have to take into account that but that is a different argument. i think the challenger has the better view of the one person one vote principle as it was
articulated by the supreme co t courtment -- court. but the challenge is and this pits them against the practical instinct, the challenge the plaintiff has is i think it is hard to measure the number of eligible voters in the districts, particularly on the state level where the districts can be small and the census measures total population and provides figures that are available. my understanding is there is some back and forth about how easily you can administer the various measures but i think the state does a good job making the argument that this is going to be difficult if states are required to use the eligible voter measures and again i think this is a case that may hit the courts pragmatic instincts
against each other. i will talk briefly about the court's business docket. there are three cases on the court's docket that have a high level of generality and involve various aspects of class-action litigation which has been a focus for the supreme court in recent years and at a high level of generality, they all deal with the concept of injury and the concept of what to do in cases where either some, or all of the participants in the class action, may not have suffered injury and how to proceed in the circumstances. probably the most significant of the three cases is a case called tyson foods vs pack which is a case where various employ as at pork processing plant are
spending time dawning prodetective gear. it is not a question of the fair labor standard act but a question of how to proceed when the individuals are differently situated or take an different amount of time to put on and take off the gear and where they may have been differently compensated. and the question is whether the client and lawyers do the modeling to essentially align the difficulties with proving the fact of injury and the amount of damages on an individualized bases. an issue that would otherwise swamp the so-called common issues of law that would permit a class action to proceed in the first place. so there are a variety of interesting issues in the case and i will not defend to an ex
sesive level of detail but i am happy to discuss the case in greater detail when we get into question and answers. another pace is spokeo versus robins which involves the question of whether a plaintiff can proceed for action of statutory damage when the plaintiff may not have suffered actual injury. this is a client claiming statutory damage under the fair credit reporting act against a company that is putting information on the internet about virtually every person in the country. and they allegedly put information about this individual that inflated his qualifications and the individual nevertheless sought statutory damages in the amount of $1,000 for this violation and
while a $1,000 for one plaintiff may not seem but what it is a millions of plaintiffs potentially that adds up. so the question is did that person have injury be article 3 of the constitution by the statutory damages. and that takes me the last case that is involving a class-action plaintiff seeking statutory damages under a statue that provides for damages on unsolicited text messages, whether you are pleased to receive them, and the person caught $500 in damages and the defendant turned around saying we will pay you $15, 003 in order to go away and settle the claim and the defendant turned around and said if you turn down
this offer it will essentially moot your claim and the plaintiff turned down the offer and the defendant said your case is moot because we offered you everything you are seeking the case and the plaintiff said i should be able to proceed because i am seeking to proceed on behalf of a class and the question is if you do that. all questions involving the class action mechanisms and a majority of the supreme court has been reining in class actions more generally but how the members of the court is going to react to particular cases, given the fact of multiple potential grounds for disposition, is open to question. i left for last, a case involving the pacific legal foundation on the thought that might allow me to go over my time. this is one of the cases tad alluded to at the beginning.
there are two cases involving the clean water act. hawks is one case. we are representing hawks the defendant in the case or actually really the plaintiff but a potential defendant in kent recycling. and they show an entity seeking a jurisdiction from the army core of engineers on whether a piece of land encompasses water and if that decision is subject to final review. there is an interesting procedural aspect to this and that is the court denied the petition for review in the kent recycling case and then the eighth circuit issued a decision creating a conflict and plf
filled a petition for re-hearing and the supreme court now has it before it for the rehearing and petition for review by the united states in the hawks case where the government lost. so it will be interesting to see which of the court cases. i think it is inevitable the court takes one, if not both, and we are hoping the supreme court will grant a petition for rehearing because that will convince clients in future cases we should be allowed to file the petition for rehearing a practice that is disfavored. >> can i ad a quick comment? this is about the equalized population of eligible voters in drawing state legislature districts. the reality i think it will be
good to have districts being the same size in terms of people being represented and people that can vote are powerful points. the choice between equal representation and equal voting rights is similar. every district map drawn since the 1960s used total population. the court has never found that to be a problem. i do think the odds that the court is going to mandate you use some other measure is low. they are fairly likely to say it is permiscible for the state to do to. but the data isn't there. the census doesn't collect citizenship information for more than a few households in a different survey. not the usual census so the
error rate wouldn't be right. registered voters as the measure, those are famously erroneous with massive people still on not in the state or even alive. i think at the end of the day we will end up with discussion about this and political science will use total population still. >> i largely agree with paul and disagree with the basic premise. i think these cases are about equal voting rights. i think equal representation is not really what they are talking about so the petitioners have a powerful argument which is if you are trying to equalize voting let's look at voters. total population is not accurate for how many people are eligible to vote much less do vote. the border districts in texas overvalue the votes of the
people in the district relative to the rest of texas because of the large citizenship gap in the districts. many of the total population just can't possibly vote. that said, i do think there is serious issues about switching the voting age population. it can be done. paul smith says it can't be done, though. this is the last time you will ever here this sentence out of my mouth. i think i agree with paul on this. for all reasons paul touched on, i think it will be a difficult task to come up with it. i think some kind of hybrid opinion that says you can do it if you can substaniate it. it probably doesn't make sense in the original matter.
the notion you would substitute the handcuffs on the state legislatures in this area i think would be consistent with pragmatic views. i think saying you can do it just like something works. just like in the hawaii case we said you could use registered voters. >> i have four cases here. first one was one granted yesterday that is a colorful story about public employees being punished for political views. there is a detective in a new jersey police department and there was a hot mayor race going on and the detective was neutral in the race which is apparently
a good decision. his bedridden mother was supporting the challenger and her lawn sign was stolen and asked her son to go the challenger's head quarters to go get a new sign and he is spotted by the incum plbants and they demote him. if you didn't exercise your first amendment rights by joining up with this campaign
there is nothing that is protected by the first amendment that is punished. this is a decision that i am not surprised but it is in conflict with the rules apry -- applied in other circuits which is if they chose to punish you about your politics it is still a violation and they should put you back in your job. i think it is fairly likely that is where they will end up but perhaps not. you never know. the second case is a case i am arguing in december. it is another one person, one vote redistricting case. the first time we had two of those cases on the docket in a while. it is the harris v. arizona independent redistricting commission and the issue there is not what population do you use but they use total population, no one is challenging that here, but the question here is whether the particular amounts of deviation between the larger districts and
smaller districts in terms of population is such there is a violation of the one person, one vote principle. the deviations are less than 10% which doesn't usually cause constitutional problems because the supreme court said that is not a problem. but here, the argument is as follows: that the underpopulated districts, almost all of them are minority districts, democratic leaning districts, and the overpopulated districts nearly all of them are anglo-districts and republican leaning districts. and the people who drew the map, the independent redistricting commission, said that is because we were striving to draw ten effective minority opportunity districts because we thought harry reid to do that to comply with section five of the voting tact -- act to get the number of
blocks we need. here is what the challengers are saying. they are saying the voting rights justification says section five is no longer in effect and you should not be able to defend the deviations that have a pattern of difference between the majority districts based on the statues that are no longer enforceable. if that argument is accepted there is a lot more maps around the country subject to challenge. the other argument is that is a sham, it was done for partisan reasons, contrary to the finding and fact of the district court, and that is an interesting argument in addition to the fact it defies the ruling of the district court in terms of the
facts. the amount of partisanship is so small it is tiny compared to maps that have been upheld by the supreme court in previous cases. what you have here is an effort to use these minor deviations in populations to ratchet up the level of scrutiny in the drawing of district maps to the point where you would have a double standard. some maps have completely equal populations and can have massive amounts of bias, small amounts of deviation, they can't. lots of possibilities about how it may come out. the third case is a case where i wrote an amicus brief called foster versus chapman from georgia. that is the case where the court said it is unconstitutional for prosecutors to systematically
exclude people from serving on criminal juries based on their race. that rule has been around long time but it has been violated much more than it has been followed in many courts around had country. this is a guy who has been on death row since 1987 when he was convicted of capitol murder. the litigation that was trying to free him was focused on whether or not he was disabled so he could not be constitutionally executed and that argument was ultimately rejected but took a number of years. during the time his lawyers got a foyer request do get access to the prosecutor's notes used in the jury process and found race all over. they identified race of the
black candidates are color codes and had a discussion of which black they would take if they had to take a black they would they can this one. it was evidence this was race based selection of jurors. they said one juror was 34 and that is awfully close to the 19 year old defendant. that kind of stuff. so the challenge was brought to the court and interestingly there is no particular legal issue. it is kind of an error correction case but races the issue of if this can be enforced and it is going to be decided in the backdrop of the whole new disagreement with the court on the death penalty we saw come out in the open in the case
about league lethal injections and whether or not the death penalty has the problem of racial discrimination. the brief we compiled showed massive amounts of evidence about how blacks are excuded from juries around the country and more likely in cases that involve a black defendant. and the final case is the government services case from yesterday presents this year's arbitration case. the supreme court allows arbitration clause but the rule is if you agree to arbitrate disputes under the federal arbitration act the agreements have to be enforced. the specific rule is they can sometimes not be enforced but only under contract law.
the argument is that california has a strong policy of favoring severalability clauses in contracts saying if the parties agree one piece of the contract is invalidated everything else should be enforced california will generally enforce the agreement. however the argument is they don't have that policy with respect to arbitration agreements and the rule in california, which the federal court out there enforces, is if a couple pieces of arbitration clause is shown not to hold up we will not just enforce the
arbitration agreement all together. so there does seem to be allegedly a different set of rules applied to arbitration contracts. i would say this looks like it is headed to the annual slap down of those people not enforcing arbitration agreements which is a regular feature of what goes on in the supreme court. that is a prediction i will make. >> mike, want to say anything about those cases? >> i would like to weigh in on the harris case. just to make sure everybody understand what is going on. arizona was under populating the districts with the fewest citizens. so it was acerbating the problem. their votes were worth more and then by underpopulating them they made them worth more compared to the anglo-districts which i think is a serious
issue. and the truth is, it will be interesting to see how the conservatives on the court react to this, the 10% thing, total population is by definition a rough proxy for voting power. so the court i thought was pretty consistent with saying if you get it to 10% that is close enough. but there was a summary from a couple years ago that indicated we will make an exception, even if you have a bad purpose, and the bad purpose was politics, as paul alluded to they are saying there is no partisan jerry mandering claim out there, not withstanding paul's efforts to the contrary, andy was saying it was a defense to a short challenge. if you come in saying i didn't create this black district because of race, i created it
because of politics which is the case because it helps republicans in adjacent districts, that is not good. so paul is arguing that politics have nothing to do with it and race have everything to do with it. while litigants in some cases, including one of mine they might take, argue it is all politics and no race. i don't think the shelby county argument has any legs. they will judge a legislatures interest in terms of the interest that would confront the legislature when they enacted the law. not pretent they can be put in a time machine and figure out shelby county would be reversed. the other part i like about paul's argument is they are taking a good approach to section five pre-clearance. you could saw they didn't need the underpopulate to get the
section-5 preclearance. you needed cushion and who knew what the justice department would do with these issues which is an argument that would be made. we had to preserve the district and you cannot hold us to literal compliance because it is providing predictions about how the hostile justice department would have reacted. i think it will prevail, but i am not making a prediction. they will be deciding this case at the same time as other cases that are relatively interrelated. >> at the risk of causing our viewers at home to switch to another channel, perhaps
whatever is on c-span2 or c-span3 i want to talk about the arbitration case. the supreme court and lower court are at logger head over this. particularly state supreme courts that are engaged in this campaign of objections of the supreme court's recent cases impleme implementing the federal arbitration act. this case is the latest in the line of cases that often involve supreme court contorting principles of state law in order to avoid remitting parties to arbitration. so i am sure this case is headed for a reversal for precisely that reason. but if you are in a private
practice you will encounter this and it is cases from courts across the country where the lower courts are out of sync with the supreme court. >> we are going to take three minutes each, if we could, to talk about some of the cases on the horizon for the supreme court. we will go in the same order so starting with mike. >> i tried to find more about the jones day case. i was unsuccessful. i think the case that is clearly going up to the court are the mandatory contruceptive cases where the religious organizations are challenging the obamacare requirement which is a follow on to the hobby lobby case that involved an employer that was religious. this is the religious organizations themselves. the eighth circuit sided with the organization causing a split. and the solicitor general
yesterday pointed to the archdiocese of washington case it is litigated by my partner at jones day neal francisco. i think the court is going to take the cases. i think there is a strong argument on behalf of the religious institutions argument. the federal court has been dismissive in saying you just need to check a box. but the reality is this is an insurance plan that obamacare requires organizations to have.
i will not predict how the supreme court reacts to that opinion. the other case which i am not sucking up to joe any but plf is the case where that is a strong challenge being brought. the constitution says all bills shall start in the house. this was the senate version post scott brown that got enacted into law. so the sensible challenge saying look the revenue bill didn't i orinate in the house and you need to devalue the law.
the washington, d.c. circuit court said this was not a bill to raise revenue. there is 9,000 taxes in obamacare but obamacare was designed to improve health care not raise revenue. it is true as a technical matter the senate didn't initiate obamacare. they took a bill from the house that had nothing to do with anything involved in obamacare and gutted it and put it in 1800 page amendment. everyone knows that is a fiction. i think the judge's point was the fiction has been around for a while. we are not going to second-guess how the two houses deal with each other even though i think he was acknowledging this would largely gut the requirement render futile the render requirement that revenue bills
originate in the house if they can get around it this easily. >> now i feel like i should talk about the williams and conley case. abortion is the only controversial area the supreme court hasn't gotten into it but there is a chance the court will wade into that area and they will then wade into the it during an election here. the court has two cases in front of it that are currently sort of in the certificate stage/briefing process so the court hasn't decided to take both, one from texas, one from mississippi, involving restrictions on abortion providers. the requirement that abortion providers have similar facilities to ambulance facilities and the requirement that abortion-providing doctors have admitting privileges at a local hospital.
the cases came out in different directions. you have the state of mississippi seeking review in one case and abortion providers seeking review in the texas case and the mississippi case is being held and if the court grants review it will prevent the question of whether they constitute reasonable were visions or go too far set-up in the case of planned parenthood versus casey. there is a good chance the court will grant review in both of those cases. since mike didn't have enough time to complete the information, another case is a mcdonald case and a case called newman in which the supreme court grabbed on to it but we don't know if they will grant review, these cases have the
potential to be the highest profile criminal cases. the mcdonald cases involves the prosecution of governor bob mcdonald, the former governor of the state of virginia, for public corruption related offenses and the newman case involves insider trader and they involve the same issue at a possible high level of generalitay which is how you discip -- design the benefit and what constitutes the quote and how much benefit does the inside have to receive to be criminally liable when it is someone else who is doing the trading? both of them are closer cases in terms of the likelihood of the court granting this.
we will nee soon with the newman case and further down the road with the mcdonald case. >> the court and the incarceration of the former governor was interesting. i wasn't sure anyone thought the supreme court would take it until now. i will talk about a petition we are filing next week. >> i am a really bad marketer >> electronic arts, the video game maker, this involves a tort called the right of publicity which was invented in the 21st century. it a tort claim you can bring if you are a famous person and portrayed in a book or movie or video game or work of art or song. and the claim, unlike defamat n defamation, when you say they said something harm about me, it is portrayal of you by name or
them portrayed realistically doing what they do in real life however true to life that is is a violation of the first amendment if you do it without getting permission first. there are other tests that tend to make more sense to us as rogers testified in the second circuit which says you can do this. unless you are doing something like using it as an advertisement or implying endorsement that's the exception. there are some states that have balancing test on a case-by-case basis whether the first amendment values outweigh the celebrities concerned being used in somebody else's work. not a good first amendment test that i think it's an issue that needs to be decided. he comes up in the context of the videogame electronic arts among other things with the famous maddon series of football games and this case a plaintiff who brought professional football players who appeared
for a number of years and didn't have the names used but it was obvious who they were or at least that alleged to be the case. we will see ultimately whether this issue gets to court. my own view to say the truth is bad and transformation are making people looking less like reality is good under the first amendment but it doesn't seem to make a great deal of sense. >> thank you all for your remarks. i'm standing up here so the mic can be freed up and we can get a few questions in which we have time for it. i'm going to ask after a call on you for you to wait to get the mic and also to stand up and state your question. i saw italy was the first with his hand up.
>> i'm from the cato institute and i want to ask you you about a case that nobody talks about that hasn't been granted yet which i think could he one of the most important on the docket it's a case if they don't take or affirm the ninth circuit would seem to overturn the important case regarding the freedom of association and not disclosing your associates or supporters to this date without any good reason and i wondered if you had any comment on that case? >> since i know nothing about it i will offer you nothing. a litigator is never intimidated by the facts. what kind of intimidation? >> with that a gate on campaigns and jamal harrison bryant information. to make it more convenient there
was ongoing investigation. >> look you have two conflicting supreme court cases and one is buckley bee vallejo but the case that liked anonymity when people are pamphleteering. you certainly have a credible argument that this is issued failed candidates vote for candidates. >> the state wanted more information. >> they can have an obvious chilling effect on people in this something that the courts has never come to grips with. >> in the political context required disclosure is constitutional. >> all the cases put together is complicated, there's no doubt about it. >> in terms of candidate donations you have a strong argument we need to know who's giving to this guy so we can
police quit breaux corruption. he becomes more tenuate when you are talking about public policy groups advocating it particular viewpoint and then it's harder to figure out. >> another question. >> there has been an attempt over the past few terms to find information in cases like the one you mentioned. they don't meet the constitutional measure of standing in a couple of terms ago the court took up the case held onto it for nine months and i was wondering if he could talk about whether or not the cases you mention might be a vehicle for justices and particularly justice roberts to test that standing. >> the case is really about that. to case that presents the issue in essence that the court seemingly deadlocked on a couple of terms ago and they sat on the
case for an inordinate period of time and ended up dismissing the case. i tend to think that this is a very hard case to predict maybe because we know that the court is closely divided on this. on the one hand i think that there's a real appeal to the notion that you have to have a real injury and congress can't simply create an injury. on the other hand there are not a lot of these statutes and the historical evidence doesn't clearly point in one direction or another and responded in the case put together historical evidence to the contrary suggesting that there was this law and practice as congress essentially created an injury for purposes of litigation. i think it's a very hard issue to hand down before the supreme court.
>> the facts are so weird as you point out. the facts are complementary to the sky. >> at least some of them. there were a friday facts. >> it seems to me there's a middle ground where we can say there's injury but you can't always put a dollar amount on reputational type injury or disclosure of private facts. i may not be able to do that and i think the legislature can just put an arbitrary number to deter that kind of behavior. i think that would be relatively attractive and i'm wondering your view does this case hit that? >> i think that's hard to say and i think in many ways part of the difficulty is that think it's very hard to measure how many of the cases under any of these statutes fit that paradigm. on the one hand when you have the cases you can take judicial notice of the fact that 99 out of 100 of those cases unless you
have the grandfather or grandmother sitting by the fax machine if there's injury that will be congruence. there's a whole range of statues maybe that will cause the court to formulate a compromised outcome as you suggest. >> wayne simmons for state farm. in the last terms some of the decisions impacting congressional authorization, congressional acquiescence statutory interpretation, then he cases going forward they could have a significant impact on how we look at congressional intent or legislative history? >> it seems like every turn there a number of cases involving initiatives for federal regulations.
i don't know any particular one. there were five or six last year where they started moving in the direction against the deference to administrative interpretations including the recent case but also others. that seems to be a pattern and what we have seen and i wouldn't be surprised if we don't see that pattern continue as there will be opportunities. >> the big issue out there is this question to which agencies get deference to the interpretation of their own regulations, the so-called question of our deference and an issue on which my former boss justice scalia hasn't particular been leading the charge suggesting that is one of deference that is recognized permissible and he is out of public change of heart on that issue. that issue will get to the supreme court.
>> does that case from yesterday raised the issue? i don't know enough about the national park service. >> i don't believe so but i say that with a low degree of confidence. the issue is going to be before the court and squarely presented the court essentially invited parties to litigate that issue and i expect we will see it litigated in the near future. the other issue that your question alludes to an paul's comments alluded to is this question of the circumstances under which chevron may not be worn today in the first place which is of course an outgrowth of the ada decision and i think that decision will sponsor a thousand flowers in the d.c. circuit where you have various parties arguing for one reason or another chevron is not appropriate in the first place and i'm somewhat skeptical that
what that will take root and established doctrine in another context that we shall see. >> there was ever cases last year in the court and there is a clear movement on justice scalia and justice thomas to cut back on that. maybe not in all situations. maybe they are categories where it applies or doesn't apply but that does seem to be a theme out there. >> i think we have time for one more question. >> tony morrow. i still don't quite get how you overcome the free rider argument in the previous case are the freeloader or whatever. is there nothing the union does for non-members that a union could charge for?
>> let's take it a step at a time. even the cord raise on the unions lobbying does not justify compelling them to subsidize. i go to the state legislature and say i'm going to get all these terrific pensions for my people and everyone agrees are just like every other circumstance where a bar association lobby for something or professors lobby for tenure. it's really none of the state's business i agree with that or not. i am the agent that makes the decision as to whether or not i want to do it remember to copy is it's borderline oxymoronic to say people who decided not to join me and won't give me money and for laughing at her he and like all of these -- policies. i gave the example of nobody who thinks he is good or to help inner-city kids is going to like
what unions are advocating for. it's a huge educational debate now about whether or not the future should be based on merit and whether you should allow chemistry teachers to get more than phys ed teachers and whether or not seniority should be the termination or assignments and layoffs all of which the unions are right it taken one position in the public policy debate and in which a teacher could take a very opposite viewpoint. so the notion that we are free-riding is like saying that a vegetarian is free-riding on somebody buying meat at their mail. we don't want this in and the government is not authorized to sign and the point that i briefly alluded to us if the unions don't want free riders, don't allow them. don't take extraordinary power to say i'm going to bind you to my theory of wages and benefits in class size in educational policy or they can be a members-only union that only
represents members that they have voluntarily decided to conscript the non-members to get the extraordinary power of exclusive representation so if there was any advocacy group in the world that would allow to make a free rider argument it's the unions because they voluntarily assumed this power, this burden of free writing in order to achieve extraordinary but greater power of exclusive representation. they can't go to congress and tell doctors how much they are going to get for medicaid and exclude other doctors from arguing for different rate. that's why if there's any context in which you would allow compelled ideological subsidization it would be this one. >> just a small dissent. as a matter of law in many places unions are required to provide representation to everyone including the grievous procedures when the employee wants to grieve about something
and as justice scalia pointed out in a prior opinion that is a bargain that is made and if you are going to buy lower choir unions represent everyone in the bargaining union on grievances and negotiating there is some logic to making everybody had to pay for that service. >> i'm sorry, go ahead. >> the clear results of not allowing unions to collect the cost of those services which is what they do is unions have a constitutional right not to represent these people so that is what you would do is end up with bargaining in the possibility of work cases where people are represented by different unions and employers are the last people that want to have that happen. you end up with an employer's interest and these employees interest but it's surprising to me that the employees would win out in that situation that public employees who have chosen to work in his work place.
>> your facts are wrong in your logic does not follow up. no state in the country requires you to undertake a duty of fair representation. the only required to undertake a duty of fair representation in the union has voluntarily decided to be an exclusive representative. on the nr -- nla you can leave the non-members entirely out of the negotiations. when they get that extra extra power and extra duty as you can't discriminate against those that you are purportedly representing. the notion that this is an important labor policy is belied by the fact that among other things 93% of people in the private sector don't have an exclusive references and 30 states don't have states don't have to sew the notion that this is somehow essential to labor peace doesn't make a lot of sense and in california if it
was essential that would require unions to be exclusive representatives which they don't. they say you have the choice. you can be members-only or exclusive. so these notions of employment disruption are false. this is all about lighting the coffers of the unions and that is what the case is about. >> we are going to have to leave further argument on this to the supreme court. i hope you all join me in thanking the civic leader foundation. [applause]
>> one of the judges who didn't get his office because of this dude and the supreme court dealt with it and marbury versus madison. marbury was one of those judges and the court said basically that he probably deserves some remedy but the remedy that congress has provided for this goes beyond the power of congress, the authority of congress so the supreme court was going to strike down that
law. the supreme court, this is something the court had never done before and declaring an act of congress unconstitutional. >> john marshall established the court as the interpreter of the constitution in his famous decision he wrote in marbury versus madison. >> madison is probably the most famous case that one never decided.
>> utah governor gary herbert to chair the national governors association spoke at the national press club about how utah and other states manage their relationships between state and federal agencies. this is an hour. [applause] >> thank you john for that more than generous introduction. i'm honored to be here with all of you here in this very historic event and appreciate
the opportunity to speak not only on behalf of the people of utah's governor but also on behalf of the national governors association a significant bipartisan organization that is serving the public well and the great state of utah and the other 49 states and our territories. people asked me how it is that i was able to get the support of the other 49 governors to become the chair of the national governors association. i thought long and hard about that and i came to the conclusion that i'm the only governor not running for president. [laughter] has opened up an opportunity for me. i feel it's an opportunity and i'm grateful to be here with a lot of friends and the chamber of commerce tommy berg who does an excellent job with his reporting and the vice president
of the national press club. for those of you who i don't know i'm a will rogers sky were a stranger's just a friend i have never met so i look forward to meeting with u.n. chatting about things that are important to you. the national governors association has a significantly important organization and that it brings her governors of our 50 states and are five territories together where we have an opportunity to network, to really share best practices and learn about the issues of the day that are impacting our respective states in this country. it's an opportunity for us to learn from each other. people are in the trenches doing things solving problems and as i have attended i leave to go back to utah able to be a better governor than i was before so i appreciate the national governors association and what it stands for and the significant role that government plan our nation.
one of the blessings of being the chairs have an opportunity to have initiative and as john mention i'm very concerned about what i see a lack of balance. the change that has occurred over many years for a think the role of the state and the role of the federal government are a little bit out of balance the need to be changed and improved. i know as we look at some of the challenges we see in our washington d.c. government and some of the dysfunctionality i just want to let the people here know and those who listen and watch the states are performing well. they are solving problems. they are addressing the people's needs and so our initiative which we have titled called states finding solutions and improving lives i have a car that i have given the governors and anybody who wants to listen and learn about the initiative and in fact for those of you that are here we'll have them
available as you go out if you would like to pick up a card. his finding solutions and states are doing that. states are the laboratories of democracy out there doing very good work in addressing the needs of the people in states have to find solutions. governors are leading in many ways with the help of their own government. i want to assure you it's not a fluke. it's not just a coincidence. it's how the system was designed to be. when we created this great miracle here of america and our constitution and the miracle of the philadelphia that was the beginning of an opportunity to have a relationship between the states and the centralized stronger federal government which was going to be able to have a sample we needed for the big needs of the overall and the needs that are unique to the states. james madison when he was trying
to encourage the states to ratify the constitution and newspaper called federalist 45 said this. the power is delegated by the proposed constitution of the federal government are few and defined. those which are germane with the state governments are numerous and indefinite so states you have been used in independence and a little more autonomy under the articles of confederation. that will change some of this new stronger federal government but let me assure you you are going to be okay because the powers given are very few in the powers remain with the states numerous and indefinite. that mirrors her 10th amendment of the constitution where it says powers not delegated to the united states by the constitution nor prohibited to the states or birds -- referred
to states or the people. that's how was designed to be. states having more proactive roles in solving problems. again we don't have the stagnation that we see in washington today. we see leaders on both sides of the aisle solving many of the people's problems. my initiative is designed to infect showcase those successes. people need to understand things are working well in the states and hopefully change the paradigm from the people saying let's have washington solve all the problems to saying let's first talk to her governors. let's talk to her legislature, to our local communities and see if we can address these things a little closer to home. my initiative has three objectives. one, to enhance or improve our collective partnerships which i think needs to happen. we can do better and our
relationships with states that federal government and to highlight some of the state solutions. we are going to try to compile over the next six to eight months some of the great success stories and put them into a book so we have something to document what's taking place and distribute that to the public for their enlightenment and understanding. we will highlight republican democratic independent success is taking place in our states and also to talk about and share best practices. those are the objectives. i think we are going to be able to highlight a lot of things and i think the list is going to be significantly long. the characteristics of these will be the successes are innovative and we are breaking new ground in territory and ways of doing things. they will be relevant to the times and put the need to find an address today. also they will be good for the public. there's a positive result that comes and we will highlight
those and the governors will submit the suggestion so we can compile this list. let me take a moment to address the idea of our first objective which is enhancing and improving the collaboratives date and federal partnership. i think we have an historic opportunity to do that. again with the challenge we face here in the frustration of public shows congresses at all all-time historic low in its approval rating. an opportunity to strength and the state and federal partnerships as intended by our founding fathers. governors have long held the understanding that there's a significant role for the federal government but a very significant role for the states to. we are concerned as governors on both sides of the aisle is constant federal over. no governor, and no state likes to have the federal government
tell them how and what to do in managing the running of their own states. that's not a partisan issue. we all wanted in fact to appreciate the understanding that there's a role for the federal government to play and to have to work in close harmony in relationship with the states. that was concept of federalism and unfortunately we have gotten away from that sharing coequal responsibilities between the state in the federal government. we support the federal's role. we know there some things that the states can't do protecting the basic rights of all of our citizens is certainly one of the basic rules we have from the federal government and many issues that are beyond the capacity of the individual states. at the same time we believe the federal government must recognize that most of the problems are best addressed at that state level. whatever the issues of the population as a community and as
americans are better addressed most times at the local levels on the state level. a balance of power between the states and the federal government is not only right thing to do but i would submit to you that it's essential to have happen if we are going to have some of the challenges we face as americans. this is not about ideology. this is about result in getting positive results that we have for the citizens of this great country. federal agencies they find are not equipped. the mentality tends to be a one-size-fits-all approach. uniform standardization. when we as governors note the uniqueness of this country and the reasons of the states have different cultures, different jabber face, different politics and different ways of doing things that are not only laboratories of democracy that pilot programs that are going on all over this country which
gives us an opportunity to experiment and test theories. as we learn from other governors and other states we have a chance to emulate and revise and improve or reject altogether as individual states. we see that happening all the time. again let me just give you this stunning fact and statistic. remember we talked about james madison said the federal government has few powers that are significantly defined. the states are numerous and indefinite and let's look at the comparison of our budgets between the states and the federal government. how you spend your money demonstrates -- demonstrates a priority on what you think is important. i've done the math here with the help of the office of management budget at the nga. if you combine all the budgets of all the states in the aggregate we are spending today
at collective amounts run our states of 1.7 trillion dollars. a fairly large number. $1.7 trillion in all 50 states. as you know the budget proposal is before the congress today is $3.99 trillion almost $4 trillion. so more than double the additional $5 billion in washington d.c. is posed to the combined spending of the 50 states. unless we have some double counting we find a federal taxes do we extract from the states and our citizens to come to washington d.c. and are redirected back to the states for shared responsibility and additional programs is a 500 billion-dollar price tag. so we don't double account you would take that off from the state budget which means the state is spending $1.2 trillion.
the ratio is really about three times more money being spent and extracted from our taxpayers as opposed to the fined 50 states. whatever james madison envisioned when he was talking about few and defined compared to numerous and indefinite most people say we have gotten away from that concept. it's more compensated than that i don't want to oversimplify the situation but it does give us an indication of what i would consider this lack of balance of federalism. i'm proud to say we have a lot of success is going on and for the sake of time i won't spend a lot of time. i'm anxious to see what's going to be submitted by the governors has the compiled this book but the truth of the matter is there's a lot of innovation going on in many places in this country. let me mention a few brief ones. we all know the challenge we are having today and the dynamic
change in society particularly when it comes to antidiscrimination litigation. that's been an emotionally charged and i'm proud to see utah has taken that issue head-on and us come together to come to a balance point to provide an opportunity for us to protect religious liberty and make sure there's not discrimination in housing and employment and other issues. it has not been an easy thing to do but we were able to do it. it's become a model for many states. i've had many governors call me. an example coming together and finding unique ways to solve current issues and problems. we see examples in texas and north dakota of innovative ways to improve the economy.
texas tort reform helping us with health care costs and find horrible ways to reduce health and access to good health care and help boost the economy and not be a drag on the economy. we see in education, we have significant examples in arkansas where we are directing monies to medicaid reform. we were just in new york recently and we looked at a new school there in new york city in the great state of new york, where we have a corporate sponsor. ibm is stepping forward and saying that's helped somebody at risk kids here. from ninth grade for the next six years and have them attend the school, gets six years of education, graduate not with just a high school diploma but with an associate degree and be the first in line to get a job at ibm with salary starting at the $2000 plus benefits.
this is what remarkably well and outside the box thinking coming from the state of new york on how we can do a better job with education. welfare reform. the constant issue of government assistance is a challenge that we address in this country and i hearken back to 1996 when president bill clinton signed a welfare reform bill that revolutionized welfare. that came from the states of michigan and wyoming, wisconsin and utah. again led by the governors and the governors and the nga help the congress write the bill. again a great example of what can do if we combined our thinking and help the congress solves the challenges of the day one of the areas where i'm proud of utah again it's in our innovation for transportation.
transportation takes the budget we have as we build infrastructure in the fast-growing state like utah across the country. and how we spend it by having regulation reform streamlining the process allows this and that to save money to build roads. one of the innovations we have had in utah is when they come to intersections and have to build bridges the traditional way is to have construction going on to build the bridge in place and it might take six months or a year and have disruption of traffic flow. we found a way to in fact build the bridge to the side of the road so it does not disrupt traffic flow and with mechanical devices and transportation with the little joystick you put on your person at the large tract or a flat platform. wrap that into place and bolted down and put in place and do it in less than 24 hours. so what was taking six months or
a year to do now we can do in less than 24 hours. we have people come from not only all over the country but around the world to observe our department of transportation and how we go bridges and a a unique way saving time and money is being emulated around the world. we are scratching the surface of all the things going on but the point is states are solving problems and innovative ways and we don't have the dysfunction we understand is taking place in washington d.c.. let me conclude by saying i know it's difficult for all of us and i think there's frustration with politics in general. we get things done and we don't have good people running for office. i think in many cases particularly here in the city and washington is because we the people are asking them to do more than the constitution ever
stood them to do. we are asking for washington to do too many things for too many people when the founders envisioned most of this work could be done in the states. we have different roles and we believe in improving people's lives and finding solutions is not a partisan issue. i think an issue we have here today is an opportunity to bring the discussion to the forefront, reset the balancing point and see if we can't anymore collaboratively work with our federal partners and really showcase what's being done and reminded people of america the states are finding solutions in improving people's lives. that's going to be at the can of bipartisanship. it's going to be a new way for us and i really do believe the best hope for america is that we can get this balance back in place in this dates have an appropriate role and visions under our constitution.
thank you for being here today. i'm honored to be with you and the states are doing it. thank you very much. [applause] >> thank you so much governor. here in washington we are talking about a fiscal cliff again, possibly december 11 is the new date and now i guess it's been moved up. the treasury secretary said congress has -- but there's question on whether congress will act or whether we will have another shutdown situation. was talking with the gentleman on my left about a highway bill and he was saying how congress can't seem to get a highway bill what can congress learn from the lessons you are talking about? how can congress bridge the divides and start working together and get that balance?
>> while it's not going to be easy because of what we have been doing for too many years. but don't seem to believe in balanced budgets. states really do live within their means and don't spend more than they take in and don't have unreasonable that at least the vast majority of us live with the tight fiscal responsibility and type budget. utah for example is a aaa bond rating. our rating is better than the united states. we need to have people in congress on both sides of the aisle understand they need to be fiscally prudent and live within the budget and it should be balance. if that was the case we wouldn't be facing a fiscal cliff. we have got budget and come away with the budget and move on. the fact that we do have regular order in our senate and congress and the fact that we have a continuing resolution is a formula for failure and causes
frustration and anxiety. for those of us in the states it gives us a lot of uncertainty subs not just harming what's happening in washington d.c. but for the states we don't know when the money is coming. and the uncertainty causes us pause on medicaid expansion. is the money going to be there tomorrow? it's here today but it isn't going to be there tomorrow? i know it's been tried and we have had a proposed a number of times a balanced budget amendment. there ought to be some ability for leadership and the white house and the senate and the house and say no more. we are going to have a balanced budget. if we need to cover slow the rate of growth over period of time we can balanced budget. we have done it before but there ought to be the ability to debate issues on the budget vote
them up or down and get back to regular order. that's the council i would give to the congress. [applause] he talked about the need to achieve that state and federal balance. where is the best example of achieving that balance or from another state where you think balance is achieved in the way described? >> i don't know that it's balanced anywhere in our country right now because i think we are out of balance. there probably examples of where we have worked harmoniously with the states and the federal government so it's not all bad. it just isn't all good. i come from the west and some of the challenges we face working with the federal government the department of interior and how we manage our public lands. for example we have lost an entire industry in lumber and it's not unique just to utah but a number of the western states and others because we have not
been allowed to spray for the bark beetle. that's just common sense. we have a destructive species knowing away at our trees and it kills the forest and leaves them as a fire hazard. there's a better way to manage that. sometimes we have areas of wilderness that have undergrowth that grows up and they want to be able to in fact be good stewards of the forest but yet they can't go in and start a fire. we have to wait for a lightning strike to calm and let it burn because that would be healthy for the forest. we are in charge and we ought to allow modifications so we can in fact tend to the forest and the public lands in a more rational way. one last example again we have the clean air act. it was passed 1990. we have unique problem now trying to clean up our air and
ozone and other issues in many parts of our country but for example in utah are industry people are not giving credit when they pay for the best available technology. we are going to process natural resource extraction or natural development. they will spend hundreds of millions of dollars for technology to have a cleaner process but get no credit for it. the only credit the regis nonattainment so the first incentive is to have dirty air before we can get clean air. there's something wrong with the rules and regulations. we need to build common sense in this relationship and it really benefits the public if they can do that. >> marriage has been a contentious issue and we recently saw the county clerk spent time in jail after she refused to issue a license to a
couple and you say in utah you were able to bring religious groups in common ring groups in, reach some kind of accommodation understanding. tell us about what happened in utah and exactly how that's working there. >> as everybody knows, it gets an emotional issue on all sides. it's probably not just both sides. there are different variations of both sides out there so how do you bring people together better in some ways diametrically opposing each other because of religious belief? most people believe in equal opportunity and nondiscrimination but they want to be able to worship or express their religious beliefs they want to without fear of someone calling them a bigot or some other kind of bad name. so in coming together at least would have been in utah was we
had all the parties that came to the table. there has to be a willingness to say what is the compromise? if you can get people to come to the table that's the first step that has to happen to say let's discuss things in an honest and frank way. we were able to have the leadership, and we have the leadership in the different religious persuasions in utah they came to the table and sat down and said we can do better than what we currently have in the marketplace. i ended up saying to both sides don't bring me one bill that protects religious discrimination and one bill that protects it ends discrimination because then we will have competing bills. i said if you bring one bill i will veto it but if you combine them into one bill sold those sites are being addressed i know what you'll bring to me and pass in the legislature something that the compromise that both sides will feel like it's a step
toward. that's exactly what happened. the competing interests were combined into one bill and is dressed in a forthright and frank manner and they didn't get everything they wanted but they got most of what they wanted and it's a workable solution for utah where we feel good about where we are at. the clerk issue those who have been tasked to perform marriages that feel like it's against their religious beliefs, they found themselves is a unique place because some of the elected those positions as clerks. before the law changed and now they have been compelled to do something they didn't sign up for it. we put an exclusion in their for elected officials that are required to perform marriage with it provides is that if they don't want to do if they need to have somebody else in the clerk's office for example who will do it so if you don't want to do it we will let you have a pass at the clerk's office has to provide a substitute of
somebody who will be willing to perform the marriage. so far that is working out very well and i think it's a bit good example of how people can come together under very difficult circumstances. >> you have been trying to push the utah legislature into an alternative plan for expanding medicaid and now there's a new proposal that appears to have received a lukewarm reception in the house. do you think you can get enough support among your fellow party members to pass it? >> we just had the passing of yogi berra one of the great philosophers of all time and i know he said i hate to make predictions particularly about the future. [laughter] so who knows? i don't know what's going to happen but the legislature. i believe there's an effort there an attempt to infect find a compromise.
i provided to our state my proposal which was held in utah designed to in fact have access to those most vulnerable in our society up to 138% of poverty and jot down money that we have sent to washington. in the state of utah we sent $800,000 a year under the affordable care act. they don't come back to utah unless we activate that. healthy utah was designed to bring us back in to put the money into private insurance to address those issues in a unique way with opportunities to give them works of the people are getting a better job with education and skills. also increased the co-pay which hasn't been increased for many years. also to help redirect from the
emergency room to see a doctor. it's a sound concept. it's a commonsense concept. it's created because of some of the flaws in what i would consider flaws in the affordable care act coupled with the supreme court decision which puts the states in somewhat of a unique situation and if the taxes are mandatory the expansion is voluntary. and reconcile that and get the best bang for the buck. some of the legitimate concerns that the legislature has raised in being discussed around the country in all the states is will the money be there as promised by the federal government? there is some apprehension and angst is the affordable care act going to stay? is going to be repealed? a lot of those things are being discussed. we have benefits that come back to providers and another
legislature is trying to find a way for them to participate to help take care of the match requirements in utah and other states in 2020 and 2021. based on fairness and proportionality, it will be up to the legislature to see if they can take the compromise we are trying to make for my proposal that they can get it passed. and i'm optimistic to hope to call a special session to have it passed by the latter part of october and i think the leadership of the house and senate will find some way to get through and at least that's my hope. >> what would you say to governors and other states who have yet to expand medicaid? are they missing an opportunity or does that fit into what you were saying earlier each state
should make up their own mind that they can have a particularly good reason for not doing it? >> we talk a little bit about the founding fathers and one of the founding fathers was benjamin franklin. he said an ounce of prevention is worth a pound of cure. i take that to mean if we would do a write in first place we would not have the problem of having to fix the problem again. unfortunately i think the affordable care act republicans and democrats alike are disappointed that it has become such a partisan issue. it would have been nice if the congress and in the efforts to put forthwith good intentions the affordable care act and had more republican participation. my disappointment as a newly-elected governor was coming to the table and asking the question when are we going to be invited the states to weigh in on this affordable care
act? we will be on the front lines of this and i was told we have not been invited. that was a disappointment to me. i said just while we should have invited our selves i came on the scene a little bit late but again i think we would have had a better affordable care act if we have governors participate and let me tell you what's going to happen in my state who might well be a challenge in here are suggestions to make it better. i think we would have a better bipartisan effort if we would have think it's the states and the governors. that being said we have on the republican side of the legislature raid a desire to repeal and replace, repeal and replace it with something else. on the other side on a number of occasions we know the affordable care act can be modified and improved.
modify and improve if you work on it can come close together. there ought to be the ability for us to sit down in a more bipartisan way and say how can we in fact improve but we have? we have to repeal and replace or can we modify and improve? again i think it needs leadership and leadership in the congress as well as the white house to find a resolution. otherwise this is going to continue to fester and provide the country. that is what you see taking place. we have stayed to say i don't want to engage because i don't trust what's going to happen. there's uncertainty. the debt, will i get the money and some say it don't support the affordable care act template and it becomes difficult because people accuse me of supporting obamacare when in fact i oppose it. i'm saying we have to deal with
the cards we have been dealt. it's the law of the land and if we can rip you and replace, find, replace. if we can modify and improve that certainly workable but until it happens our taxpayers are spending a lot of money. they get no benefit and i will start where i began. the requirement to pay the taxes, the new taxes under the affordable care act are mandatory. expansion is voluntary and that's the conundrum we find ourselves than in the states. >> the federal gasoline tax hasn't been increased since the lenten administration. how do you get -- how did you get a gasoline tax increase to republican legislature in a republican state and how did you also get the legislature to agree to a bond issue to fund the eye 15 rebuild?
aren't republicans supposed to be the party of no taxes and no borrowing? >> well know. we are speaking as a partisan responsible for spending taxpayers dollars. if we had no taxes there would be no way around the government so clearly how we extract money from the population is a key issue. we in utah are trying to find a balance approach. recall is a three-legged stool of property tax sales tax. every state has a different mechanism depending on what what their strings are and what their weaknesses are and what they're policy and philosophy is so what works in utah may not work in other states and that's something they need to find. we are able to get something done because we have good leadership and it's not just the executive branch. certainly we are a part of that but we have good leadership in the house and the senate.
we have good leadership in our private sector. we have great chamber of commerce members who say for us to be successful in business we have to have an infrastructure that works. we heard loud and clear from the business community that we have got to have a transportation system that gets us from point a 2. e with little discomforting congestion so we try to be proactive when it comes to transportation. it's an economic benefit. it's an economic generator and a facilitator. we found after 18 years of not having any adjustment in the gasoline tax what we have lost to inflation the purchasing power significant. compounding the problem is cars and automobiles and trucks are much more efficient so we have more miles being traveled and less revenue that comes than proportionally because more efficiency in automotive does predict that to make some adjustment just to break even
just to keep keep where your ads and that's just to maintain the capacity. we happen to be the third fastest growing state in the nation so it's not just a matter of maintaining. it's also a matter of increasing capacity and i believe in the people. i believe the people understand the facts and all the details regarding why you need to have an increase in the gasoline tax for transportation purposes and economic development. that's part of leadership. you have to explain the details and let the public understand why this is important to let them weigh in on it. we have a private sector win strongly and effectively needed to need to make an adjustment on transportation and did so. made it easier for the legislature to do it with the support of the business community, chambers of commerce education and others to make a commonsense adjustment in our
taxation for transportation. frankly it has worked and other than a few extreme voices out there we have not had really much discussion. it's not something we have sprung on the public and we were able to in fact get the public to weigh in and they wade in and we did it. >> i received a couple of questions about the mass shooting in oregon yesterday. president barack obama yesterday responded to the shooting by calling for reasonable gun control. he said quote, i've got to have a congress and i've got to have state legislatures and governors who are willing to work with me on this end quote. what can the governors do to help stem the recurring problem of mass gun violence? ..