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tv   Key Capitol Hill Hearings  CSPAN  January 27, 2015 12:00am-2:01am EST

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coming down the pike where whole new areas will have to be rethought and will that lead to a general push to increasingly did he regulate sectors of the economy to make four people to use the internet are we going to see political pressures to do that or ad hoc basis? a new company comes along to has to rethink that one sector. >> i'm from trip advisor, just to answer your question, i think what you may see is consumer appetite and more wilderness and a clear attitude about what you are seeing with uber, airbnb flip key, is the bumping up against old regulations that have existed for health, safety, and prosperity. we are for those.
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brian talked about getting 500 people to sign up. that power to do that has not existed up until now. that is an amazing opportunity for an entrepreneur to find a market demand that is pent-up by the populace. as that proliferates and people start doing it and adopting it i think we have seen in many different instances, whether it is the company we named, stub hub, ticket regulations, all of these things in the past 10 years, a little bit of hey, easy on the tiller, let's see how this plays out. that's one of the things local government can do, because i do think there is a tremendous opportunity in the 35,000 municipalities that airbnb or uber are in to test. part of what we do is iterate.
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you have an amazing lab right around the world to see what works and what doesn't work. i think i think that can be applied to the federal government and what we are talking about with congress. i think how boston implements technology and uses it, taking the best from what boston can do, or new york city, or chicago, and then seeing what works. i don't know if it will happen from a top-down approach, but sort of a bottoms up, best of the best, is something we can reasonably look forward to. >> juliett, then margaret, then adam. >> i want to think about technological unemployment. and talk a little bit about the economic context in which all of this is happening. partly because i think the sharing economy, tech companies and others claim a lot of good public affects.
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and if we think about the massive employment destroying capabilities of these technologies, that is the flipside of efficiency. you have to own that part of disruptive. and then ask the question, what about technological unemployment? something that came up it really was not addressed well is that it's true that new jobs are created, but if you think about the whole picture of economic analysis and you look at the previous two centuries and how technological unemployment absorbed, it was in two ways. one was growth, rapidly growing economies, and number two, massive reductions in hours of work.
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we went from 3000 hours of work in the late 19th century down to under 2000. in the united states, neither of those conditions is really optimum at the moment. we have slow growth. we are a mature economy. we are facing a future of low gdp growth rates over the next couple of decades, and we have big barriers to the reduction of hours. i don't think we can just assume that we are going to be able to absorb. if this sector wants to be able to not only promote gains in the narrow but have things work out in a way that yields public
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good, we have for to be thinking about those larger labor market policies. >> some of this is the way we want to look at a market in action. if you're looking at something finite, if we have maxed out what we are capable of doing as an economy and a marketplace this is not just a concern, it's a problem. the pie is so much bigger than we realize. as an example, in 2013, we added 25,000 rides in chicago. not we took 25,000 from cabs. the demand is there for all these services. that gets to the demand has been out there for this stuff, but
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now we have the technology to meet it. we are on the cusp of an economic seachange. there was a time when there was a horse and buggy on the road next to a car and people got around both ways. i think technology is allowing this to happen. these are valid concerns, but there are potential solutions. if we stifle growth out of fear that we do not know what the answer is, we are stuck in ever -- and never moving forward. >> we do have janet yellen trying to encourage the idea among economists and employers that increased wages are actually a good sign for economic growth. and i think about the point that was made about mobilizing customers and using them to
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affect policy change, but that can work the other way as well. people seeking employment can unionize, maybe in a nontraditional way, to seek increased wages or increased benefits. >> i couldn't resist. there was a recent story about the minimum wage and people stuck in these jobs and the growing protests they are launching. you find yourself sympathizing but of course, the very technology that we are sitting around talking about is going to make it very difficult for these protests to pay off in the long run. we already have fast food restaurants moving to kiosks and the like. i think we are going to see
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the problem of wages stay utterly stagnant for a large segment of the population. i think a lot of the technologies we are talking brian worth about are part of the problem and we have not quite figured out how to work around that yet. i don't think there is an easy answer at all. >> but the technologies are the answer. that's kind of the point i was trying to make. i was in san francisco. i took an uber ride. the woman who picked me up, her husband came home from work and she would go out for two hours while he was home with the kids. she was not working full-time as an uber driver. in fact, she turned her lyft app off. people do that a lot, whichever one was working, she had on. but that is how people supplement their lifestyles and income in a way that is more convenient.
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this is an opportunity. this is not something that is holding people back. >> it's an opportunity to work three jobs instead of two. [laughter] >> but it is offering a certain amount of flexibility. it may mean that the workforce has to change and people's expectation of the workforce changes. maybe you are running a small business that is on ebay or at -- or etsy while you write articles for the yahoo! small business database. the idea that somebody works and stays at one job for 15 years doesn't work in this sort of economy, but i do agree with brian. there are certainly problems and opportunities. we don't know yet where all of the opportunities are going to
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arise. but generally, the technology in the platforms we all use create opportunities. one of the things that has been really fun about working for yahoo! is that there is an opportunity to educate lawmakers about policy issues they have never thought of or technologies they have never used. you are often fighting an entrenched industry, but you're also not set into anyone policy answer. you could have three answers that work for the industry. you get to have that conversation with lawmakers. you get to talk to them about what are your concerns, what are our concerns, how do you make that work? there is not necessarily one right answer, but there is a huge opportunity to do a lot. one thing is to make sure we bring users along and make sure
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they are part of the dialogue, and that is what you are starting to see. >> i think we cannot argue this on the basis of anecdote. there is little doubt that these technologies have enormous labor displacing impact. that is why people like that. it's not to say that uber won't create more rides, but i think there are really two big questions. number one, what is the aggregate rate of growth because that is absolutely central for how much of the displaced can be employed. and we cannot forget that every percentage point of gdp growth puts a certain amount of co2 and other greenhouse gases into the atmosphere. it's a very close relationship. we are coming to the point where we are going to have those kinds of caps. that's a whole other type of constraint on thinking about
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what's going on at the level of the nation has a whole. the second is hours of work. if you don't have hours of work you cannot absorb technological unemployment. just look through history. it's not to say that we should not have the new technology or stop this. but we have to think about it in a framework other than local regulations of taxes. it's also about income distribution, labor market policy, climate policy, and all of those things. we need to look at the big picture to make sure where the game is going. they may not just be -- one particular internet company may not want to get engaged in that,
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but the community as a whole has to. precisely because of those backlash issues. >> i am david simon with salesforce, providing software as a service. i think there is a point when you have rapid technology change and rapid displacement, one of the places this needs to be reevaluated is the educational front. this country has very much ignored stem education for most of a generation. we have yet to really try to take advantage of the technology. but in terms of stem education for people who are being displaced so that they can get new jobs in a new economy that
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are valuable, the idea of sending people to community college. and by the way, community college is a relatively expensive way to reeducate somebody when you have the internet. it creates all kinds of problems. how are you going to get your daycare taken care of when you have no income and you have to go someplace? policymakers tend to get stuck in a certain way of thinking whatever their perspective is. you have a real dichotomy of twentysomethings who are doing a lot of work for the policymaker but the policy decision maker is somebody who looks like me who is typically very entrenched and a certain way of doing things because that is the way they have been doing things for two generations. >> in terms of policy makers i think the single biggest thing that policymakers don't get in terms of economics is the difference between a brand-new
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niche and a niche that is three or four years old. what we have seen over and over again with new spaces is that these things lock in very quickly. that is doubly, triply true with the sharing economy niche iss, which are essentially market makers. have 300 years of experience that market making niche is naturally become monopolies. that should make us more concerned to look at the redistribution of market power. if i want to drive a car for a living, very soon -- how many ridesharing companies are going to survive? i would bet a month's salary not three. probably not even two.
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this is where it becomes very difficult for individuals to bargain on their own with these entrenched firms. >> or even if two or three ridesharing companies exist, there may be dozens of limo companies or cab companies that they have replaced. there's still a consolidation. >> and by that time you are down to 2, it is very easy for them to collude. by the time you have just a couple of handful of players sotheby's and christie's, you don't even have to break the law to make deals about how people sell there are work.
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>> i wanted to jump on the point of educating the workforce. it is true that technology is both disrupting the labor market and creating opportunity. about half of our folks would not have created businesses otherwise. but i think the stem education which is important, fills fewer jobs, i think, than building out the work around entrepreneurship and preparing both for the new and changing economy that is not the result of technology alone. the economy has been changing for a long time, more flexible work, self-employment, all of these things, and how do we help repair the workers that have been displaced for that new world of informal entrepreneurship is i think a bigger question for policymakers more broadly. >> i have to say something about the stem comment. just down the street is mr.
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teitelbaum at harvard in a book saying it does not exist. that there is a traditional cycle that happens time and again. it happened in the 1950's after sputnik. if you look at employment rates and wage rates for people that have technical training, there does not seem to be a problem. wages have been relatively stagnant even for them. the idea that we can educate our way out of this by teaching everybody math is highly questionable, and we need to look at that, too. >> what is the relation between stem education and some of the concerns in the tech industry about immigration? we are here in a moment where the president is considering executive action on immigration if congress does not act although that seems to be politically charged and may not happen.
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we've had forward.us trying to take a very active role to push some movement on the immigration front. does anybody want to comment on immigration and the role that is taking in this? >> a scam to keep wages low? >> sure. >> my ceo, mark zuckerberg of facebook, has taken a very active role in immigration reform in the last year. there are many components of comprehensive immigration reform. the one i think you are specifically focused on that relates to stem has to do with what i think most of the companies who operate in this space do perceive as a shortfall of the types of highly skilled trained engineers, computer scientists, who can produce at the level that is required to remain globally competitive.
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i think most of the companies around here would be interested in reading the work of professor teitelbaum, but as a day to day matter, they are not able to find from the u.s. trained work force of u.s. born people a sufficient number of skilled engineers that they need to keep these companies growing, innovating, and competing. that is where immigration reform on the high skill side comes in. we have at facebook -- probably get about 50% a year of the h1b -- those are temporary pi visas for high skilled workers. we get about 50% in the lottery each year of people we have given job offers to. as a global company, if we can't
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bring those people to the united states to work with our engineers in california, we will probably still give them a job. we're just going to put it someplace else, and that's not good for the united states and that's not good for our economy and for building and maintaining the kind of centers of excellence we have in silicon valley, austin, boston, and other places that we want to maintain. just taking facebook as an example, but i think it is true for a lot of companies around the table, we have close to 80% of our workforce in the united dates states and 20% outside the united states. and i think that's what we want to maintain, right? we want u.s. based companies growing here and serving around the world.
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so prospects of immigration reform are looking dim, i would say, in the current congress. the president is considering taking executive action. we are hopeful that he will tried to address all aspects of the problem, both the current undocumented and the shortage of high skilled workers. >> i would argue that this whole issue of immigration and what facebook has been up to really makes the case for the tech community to get more invested in long-term policy conversations. we have a military disaster on the border right now with a bunch of seven-year-olds coming in. it's part of a much bigger systemic problem where issues like governance and failure are big issues. it's getting wrapped up in that. dhs is putting this under the headline of resilience. you are going to see more and more definitions of resilience.
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mass population movements are part of it. unless the community takes on this whole civic problem-solving of complex sorting and filtering of the challenges we are facing as a global society, i think it is going to be hard to get out of this spot and it cannot just be about visas for your company. i was really surprised honestly, as someone who has been working in d.c. for the last 14 years is that the most notable thing was the forward.us is take out ad buys against environmental issues proposed by members of congress who you are really going to need on your side in the tech issues. that stuff is relationship-based. i mean d.c. really is like a junior high.
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there is the jocks. there is a homecoming queen. there are nerds. there is a moment right now with such a need for people to intentionally bring these problem-solving minded folks together and figure out new ways to do this, and it's not going to look like the old model of lobbying. i will tell you what that looks like inside congress, is the tendency to use a campaign technology for governing. it is making governing look like campaigning. i think people who look at congress see this. it cannot be petition sites. it can't be like -- congress is dealing with sentiment, not substance. unless we figure out a way to privilege information that matches institutional functions, like what is the subcommittee institutionally responsible for, that is the information it needs at the time from authentic, high reputation sources.
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it's this kind of -- my dream is that we are going to move to a future where this community reserves or helps create some new rules. i feel it every single time it is these process rules that are just missing, and they really don't exist right now for civic, central norms. >> i think -- one response -- and adam is a great person to talk about this, because it facebook six or seven years ago he started trying to educate members of congress about how to use our platform to hear back from their constituents in new ways. one thing i want to point out is that while all these observations about ways we can educate and change the institutions make a lot of
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sense, we also as companies need to operate in the world in which we live today, and there's a big difference between silicon valley's approach to the world and washington's approach to the world. silicon valley companies want to see systems and go around them or disrupt them. unfortunately, at least for now, congress still operates as a democratic body with members who go home to their districts and while they may care a lot about what people in silicon valley think in alabama or some congressional district, they care a lot more about what members of their districts think. this is what ford struggled with and i think we've made a valiant effort in trying to get comprehensive immigration reform done. you still have to change the minds of the people at home before their members of congress are going to be responsive to them. so the strategy you mentioned of
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the ad, that was one ad as part of a broader effort and strategy to figure out how to build the support in the districts to give members of congress the fortitude to take what might be a popular vote in silicon valley but a difficult vote in their home district. it is this mix that we are still going to have to do for a while when it comes to politics. we are going to have to do some new stuff and try to change it and we are also going to try to convince people in some old-fashioned ways, although maybe using new tools. >> it seemed confused slightly. i used to work in congress. i love the institution. many of the things you suggest are good things. it also has to be an institution that wants to save itself. that is not always evident in congress. yeah, their software doesn't work. they sign 10 year contracts and don't break them. they cut staff. they don't always want to make hard choices.
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it is incumbent on us to provide help. you cannot save somebody who doesn't want to be saved necessarily. certainly, when i look around the table at folks who represent policy shops in washington, many of them have connections in washington and i would not say they dropped in from junior high as transfer students. when you look at some of these issues, you can say we need to be more involved in immigration and governance. that is why we have a government. this is not why google or facebook has a job, to solve a refugee crisis in latin america. i think they are willing to play a role, but that is the role of government. to put solely a burden on us while trying to simultaneously save an institution, i think the benefit is there are good people in government, in chambers and branches and at the local levels of doing this, but you kind of
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want both things here. we have to save an institution that might not want to be saved and also simultaneously replace it and how make something better. it's a confusing argument. >> i can say i am definitely confused. >> i just want to make the point that one of the innovations these companies represent is reputational networks. there is a great example of that in the executive branch. there's a recent article about how 10,000 federal employees are using gibhub, which is a way to share code as well as dialogue. so you have 10,000 federal employees collaborating, and you have reputational mechanisms that are helping them sort input from the public and from other federal agencies and so forth.
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how we make policy, yes, a lot what i am excited to see is the regulation. the platforms that power the regulatory agencies are developing a rewrite open api. it is not that you have to go to the website to put a comment in but advocacy platforms, grassroots, everyone can contribute and we can use technology to sort and weigh all those things in the rulemaking process which is a big part of how we govern. >> i would like to add on the top, that is an area that affects our entire economy. when you look at internet companies as a whole they are
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relatively new companies, young in their development and certainly new to politics and policy. i would argue that when it comes to immigration reform our companies have done more and more than their share to push this debate forward and have it be a constructive conversation and move the ball down the court and that is not something that happens in one time or one year. it has been many years since the last reform. i think internet companies deserve a lot of credit for not just picking up the mantle on what matters most. they have picked up the mantle on what is best for broad reform and taken up share of something that matters to the entire economy. on this general topic is why policy matters to stirrups. there are a lot of issues and his new entrance command policymakers have to make a
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decision. are we going to protect businesses when the next generation -- part of the great thing about our economy and country is we're coming up with new and better ways and it is improving our society and the internet is a great focus for that. then there's the issue of patent reform. we have seen a surge that has gone after the larger internet companies. you're trying to create a business and instead you're having to do with court cases. probably people have thoughts on that issue as well. >> i want to take a minute here because we have around the table people from industry, academics
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public servants, and we have a moment here where we can -- we should have a discussion about what is missing, what do he not know? what -- some of the things that juliet had raised, what are some in your mind important areas for research for discussion to dig in here as we look forward over the next couple years. what are areas that need a lot more attention so we can make good policies, with we can make good decisions? >> some of that has to start with education and engagement. that is one of the reasons why you're seeing internet companies start groups like the internet association, why you're seeing sharing economy and for
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government to make the policy and to be thoughtful and how these will evolve in the future into the right policy that works in the wrong one. i think now is the time for a lot of engagement and a lot of conversation so that the groundwork is there for smartphone policy to be written versus where we have -- where i have seen we have been for the next few years which is reactionary policy. not necessarily based on a real understanding of the industry or the issues or where the industry is evolving. that is a joint responsibility for government and our industry to start and continue that conversation and start building this bridges.
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>> we can articulate what our policies are but it is very hard for us to get good data about how effectively or ineffectively the systems that are being built by some of the more innovative companies in these spaces actually do or do not change the goals. a lot of decision-making gets done in the realm of anecdote. if the companies have a vested interest in really certain data that tells a story it is an area for people who are interested in policy research to look at. to say what is the overall impact of an alternative to the transportation availability to cost, to supply and areas that are under supply, things like that that give us some hard data we can look at to see how well
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these services do or do not support the policy objectives that we have. >> carbon accounting is important. there are a lot of claims particularly and the sharing economy about the footprint lowering aspects of these activities. we do not know much about how true those claims are. airbnb just did a study. we are going to be doing more and more count -- carbon accounting in coming decades. this is an area where the industry could get out in front. in theory, it should be a happy story to tell. and also to be a model for the kind of putting these accounting systems and a place and being
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kind of proactive about it. i think it would be really fantastic. >> i have never encountered a politician who was anti-innovation and very few are anti-internet. and innovation as we know has effects, has consequences. we talked about one of them. a can be disruptive and cause shifts in the workforce. the difficulty that a lot of us are in, oftentimes there is a quick reaction from policymakers . we were for innovation until we started seeing these disruptive effects so now i need to put the eyes on that. these are all valid questions. we have a structure of labor laws of child safety laws privacy laws and we might not agree on the structure and
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specifics, those laws generally reflect a consensus that those things are important. the format that they take may be different from the way it is taken in the past. i am not sure that protecting a taxi medallion system is the way to ensure that we have a vibrant middle class. i do not know his answer is. i think that one possibility is to it saw things play out. a couple years ago wind -- there were a lot of paid workers and in part because of pressure they were facing they voluntarily acted to give more robust health benefits. they were thinking we are a large employer of middle-class
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people. we think this is the responsible thing to do. some of these internet businesses become more mature. companies will grapple with those effects as well. i feel like with respect to policy there can be a do no harm approach. letting some of these things play out. some of the old values that informed older laws will manifest themselves in new ways. maybe more modern ways. >> just sitting here i was struck and molly started off by saying a lot of these debates were about other aspects of what is happening on the ground. we talked about things that have nothing to do with met neutrality or any of these issues that people say let's let the nerds talk about that. you're seeing power companies changing society more rapidly than society can keep up with.
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i have been first row seat sidewalk away concerned about how we're actually going to fix these institutions. at the local level you see people going in and that makes me optimistic but when we look at congress, i do not know. we are working on this but i don't think you figured it out either. one thing i would ask all of you to keep in mind is we definitely feel an attitude of the company is broken, let's avoid them. just ask yourself to the early moderators point. what we do in 2030? you are forcing a lot of changes in society that has impacts far beyond what wentz -- what
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happens. our institutions cannot keep up with that rate of change. a real positive note to end on. >> before we wrap up and i know people have some flights to catch. we do have some people who have not had a chance to talk. chris or kerry or, who else? has not had a chance. to anything before we wrap up? >> i am from trip advisor. i guess just on a more optimistic note.
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there are some of these companies that are disruptive companies that are starting to take care, they are not technically employees. they are trying to treat their task as well by directing them and getting good deals on health insurance and cell phones and tools they might use in the tasks. i think with companies that are working through this. uber faced protests by the drivers and seattle.
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i am optimistic that there will be a good outcome. people, i would not want to get into an urber if i felt the driver was losing money and is really unhappy. my driver said we are alive, it is wonderful. businesses are not dealing with labor so much. >> we appreciate you bringing it up. >> there will be -- every driver has been genuinely happy. i'm interested in mobility and their happiness. i think i am optimistic that
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these new companies will be able to find an outcome that is good for workers and consumers, good for the economy. >> this has been a great discussion listening to all your points. i wanted to make a comment and combine seth and david's point. you talked about infrastructure and david, the dichotomy between those making the decisions and the people, the consumer. what i see as a pattern here is how can we decrease the social distance between the decision-makers and where those policies impact. you're looking at the city of san francisco has an introduced a platform that is similar with a crowd sourced people living in the city to solve problems and
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decide what to use. new york is -- i see great opportunities for health companies to decrease that social distance. >> i am interested in the disk connect -- disconnect and users expecting things intimately. adam said he used to have to look into the basement of the municipal building for a record but now you can get it immediately. what are people expecting of congress in the time it takes to make decisions? i would -- i do not know the answer but with the instant
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gratification we have and over -- uber, there was a mistake and they refunded my money in 20 minutes. >> there are a few things that i have learned. i was often confused. there is a big difference between policy deliberation and delivery of service and resources. when you look at -- that speaks to the expectation that people should be able to do anything, anywhere, anytime. it would be different because we are doing things which is preferable for the current situation. you need better deliberation. this does bring up one of the scariest things about the
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internet on policy. this notion that you have a lot of companies that deliver information based on what they think users want. you see things like the filter bubble and these behaviors where people are connecting with people who share their worldview. you're seeing a similar thing happen in politics as people race to more extreme positions literally move to new geographies. it is affecting our debate. i wonder how we stop that. if the model for an internet company and we try to make our robots work to deliver that instantly, that does not force them to think differently about stuff and it reinforces their worldview. i do not know how that stops but it reminds me that what is best for our users is not what is best for our citizens. we have to make sure that we are cognizant of that.
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>> i wanted to circle back to the startups and what they should be thinking about. if they are entering a regulated industry they have to keep in mind going back to my days as a civil servant. the risk reward ratio is entirely different and is for an entrepreneur. the first time that there is a fatal accident due to a ridesharing service, everyone will look to that official that let that service operate. the risk is extreme but there is no reward. you are starting up that service, your reward is a million or billion dollar enterprise. you have motivation to get it done while the civil servant will be thinking do no harm until i am certain it will work out. there is no good way around that except the cooperative efforts we have heard about and
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educating officials about why your service will not do any harm. i am encouraged by the what people said about the collaborative efforts that are occurring. the them -- the entrepreneurs go charging into the room and do not realize the person they are meeting with, if they are not protecting interest, they are risk avoidance for reason. probably because they are thinking do no harm. >> this is a stimulating interesting discussion, covered a wide range of ground beginning with our initial discussion of use of the first amendment around data online and in between talking about some of the challenges facing governments and startups and navigating unfamiliar terrain.
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the challenges all in the midst of different kinds of change and on that note, i will let our cohost give us some closing thoughts. >> i wanted to thank maggie williams and the staff for making this symposium happen. i wanted to thank our moderators. these are important issues. as the policy landscape changes and companies if we have the same conversation, there are new topics and that will be exciting. this conversation helps move the ball forward. thank you very much. [applause] >> next, the supreme court oral argument in williams.
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then congressional budget director on the economic outlook. a discussion on how government policies affect the internet. >> on the next "washington journal." a member of the judiciary committee discusses the process of investigating any death of a citizen by the police. and discussing the influence of the tea party heading into the 2016 presidential elections. live at 7 a.m. eastern and it can join the conversation with your calls and comments. >> the house select committee on benghazi meets tuesday to
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continue its investigation into the 2012 attack that killed ambassador chris stevens and three other americans. state department officials and representatives are expected to testify. you can see it live on c-span3. >> this sunday. dr. frances jensen on the recent discoveries about the teenage brain. >> they do not have their frontal lobes to reason. cause-and-effect and consequences of actions are not very clear because their frontal lobes are not at the ready. they are not as readily accessible. the connections cannot be made is quickly for split-second decision-making. don't forget a lot of the hormones are changing in the body of young men and women and the brain has not seen these yet in life until you hit teenage years. the brain is trying to learn how to respond to these new hormones
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that are rolling around and locking onto synapses of different types. it is sort of trial and error. this contributes to this roller coaster experience that we watch as parents. >> sunday night at 8 p.m. eastern and pacific on "q&a." >> the supreme court oral argument in williams v. the 39 states hold elections for some or all of their judges. 30 have limitations on raising campaign funds. the court is expected to decide this case before the term in june. this argument is one hour. >> we will hear argument next.
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mr. pincus. >> thank you and matt please the court. florida punished the candidate seeking election to judicial office because she signed form letters and a web posting soliciting contributions to her campaign committee. contributions that were completely lawful under florida law. the first amendment ours florida from prohibiting that speech. threshold question of course is what standard of view. we submit that strict scrutiny applies. the standard that was applied by the court below. this is obviously a content-based restriction in -- it turns on the content of this speech, does it solicit a campaign contribution:? my friend relies on this decision. this has sometimes been applied to contribution limitations. >> it is whatever the standing.
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suppose the florida rural was simply no face-to-face solicitations. that is it. that would be a valid regulation or with that fall under first amendment as well? >> i certainly would concede it in this case because my client did not engage in face-to-face solicitation. >> i want to understand your view. in relation to this lesson to the selection of judges. >> the state could adopt a prophylactic rule prohibiting face-to-face solicitation. certainly one-on-one solicitation and as some states have done, solicitations in larger groups. there might be some applications of that rural that were -- rule that made that invalid as applied.
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face-to-face solicitation of one's relatives. the first amendment would allow the adoption of that sort of role. >> you're making it -- recognizing there is a difference between judicial office the first amendment allows the state to do things as -- with respect to the election of judges. >> i would say that the first amendment might allow a ban on some solicitations on a coercion theory. there are three government interests that have been advanced in this case. >> you gave me an answer and now are you telling me that answer was open to a percentage, a ban on face-to-face elicitation --
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solicitation. when you be judged by the same standards as a ban on face-to-face solicitation by political [indiscernible] >> it would be judged by the same strict scrutiny standard that -- one of them does not exist in the legislative context . interest in preventing bias or preserving impartiality and the interest in preventing coercion of the personal -- person solicited applies somewhat differently in the legislative context that doesn't the judicial. i do not want to say there is no ban on solicitation that would be permissible in the nonjudicial context. there is a federal statute that bans congress from soliciting federal employees. >> you had the statute that would be valid barring
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face-to-face discrimination. then you have all kinds of gradations. what about a personal, one-on-one letter, how is that different? i can see the court having to say this is under-inclusive area and then if we say the one-on-one letter, that is almost like a personal solicitation. we can ban that and then what of -- what about a letter to five people and wear off to the races. when you make the initial concession you have a real problem. determining how to make this over or under inclusive. >> i do not think so. the court has drawn a line between written communications and oral communications and the lawyer solicitation context. the court has drawn that distinction. there is a reasonable
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distinction that it says whatever the role might be written communications are fundamentally different if the interest of the government is asserting its coal russian. >> we need somewhere -- is that written or oral? >> i would say in person. i think the question here again just to backup format is i think in all the contacts we are talking about. the interest is whether the person solicited is being co-rest. >> give us the three interests that you started off, you never did get to that. >> i did not. sorry, your honor. >> it is your fault. >> one is the interest in preventing quid pro quo corruption and promoting
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impartiality and preventing bias and third, the interest in protecting person solicited against coal russian. against coercion. >> what about the interest in judicial dignity? >> well, that -- >> i mean, there's 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. >> let's assume that that rule is written into judicial ethics. would that stand? >> well, i think there is such an interest, 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 --
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>> no, no, but answer my question. would that be ok? >> would it be ok to -- >> an interest in judicial dignity. there are certain things that are infra dignitatem, as we say. >> i think there is such an interest, and i think it's executed principally through the acts of judges as judges and maybe is 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 restrictions 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 thank you -- >> so if florida law didn't let
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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. i mean, we're told by the florida judges who filed a 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 that i mentioned, the interest in preventing impartiality and the interest in preventing 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.
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>> suppose a state's view is we want the -- our judiciary to be above the political fray so we have this kind of restriction on putting themselves forward as the 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 as the court said in its opinion in white, 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
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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, the decision to prohibit -- >> well, how can the judge not know? especially if some states want disclosure, is the judge supposed to not read the disclosure list? everybody else does, he doesn't? >> well, there are some states that prohibit the judge from finding out who knows. minnesota, for example, has that prohibition. >> well, that it seems that that's just unworkable. >> i think there's a question about how effective it is, but i do think that undermine underlies what's really going on here. that any incremental benefit that is served by a prohibition on solicitation, given the reality that the judge knows and especially given the fact that the judge can write a thank-you note -- >> so you're suggesting that there could be a mass mailing, but the judge somehow could be
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prevented from knowing who responded? >> well, that is the rule in some states and i don't -- >> 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 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 is even less of a of a reason to prohibit solicitations because the judge isn't going to know who responded. >> good, honest, midwestern state, they're not going to tell. >> could i go back to judicial dignity coercion. it's 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.
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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, i -- >> but i think -- >> because she was unknown. >> even when she -- >> 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 is totally permissible under florida law -- dear joe, as an attorney frequently appearing before the county court, we're sure you're concerned with the quality of
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the judiciary. judge jones personally asked us to serve on his campaign committee, and we're writing to ask you to contribute to his reelection. 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 to about compelling interest. >> 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 18 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
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give, ok, 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 that i think 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 core critical speech where the court recognized, both in the charitable contribution cases in schaumburg and riley, as well as in mcconnell, that 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 sutton for the sixth circuit, and as the eleventh circuit and as the ninth circuit
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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? >> i 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 the giving of a list to circumvent that rule. >> but your problem, in a way to decide this, and it's a sort of joke but it's so true in the experience of the court of appeals that i had, my brother in the district court, district court judges i know, 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. 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 almost universal. and i thought that's why they're -- they're writing the rule the way they do.
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when it says, i ask for your support, an early contribution of 25, 50, 100, 250, or 500 made payable to me or the campaign will help, sincerely sign my name. that's 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, i think, a couple of things, your honor. i think, first of all, there is not i think you have to compare that letter to the -- to the text that i read, and it seems to me, the fact that the candidate's or the judge's best friend is the chairman of his committee, the full committee --
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>> no, that's if you're maybe you're looking for something when somebody else writes the letter, somebody else makes the request. >> but -- >> this is so instinctive but my instinct is it's not the same
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thing. >> but they're making the request on the behalf of the judge. >> right. >> i think that's the critical factor -- >> so why is -- >> i mean, it doesn't it doesn't just go to a lawyer either. the limitation is not solicitation of lawyers, is it? >> it is. >> it's anybody, which really makes me think that it has more to do with judicial dignity than the corruption stuff we've been talking about. you can't solicit anybody.
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>> it seems to me in the system where a message from that person that combines what they stand for with a request for a contribution makes that more effective not because it's coercive, but because it's tied to what the person stands for, and those parts of the message are effective when they come from the person themselves. >> i think i think you'd find the same statistics true with respect to political candidates, that they do much better when they when they put the arm on you personally, rather than having somebody else contact you. i can't imagine that'd be any different.
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>> well, that's the point, isn't it? >> well, i think it's only the point to -- >> when you put the arm -- >> i'm sorry. i think it's only the point if that arises from coercion. and as i just said, i'm not sure that that's right. 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 coercion. i think there are a number of other more likely explanations. >> mr. pincus, i take it follows a fortiori, 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
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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 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 meets 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 is why is the restriction on us constitutional whereas -- >> you're federal employees. 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 of government employees. >> so florida could regulate the already elected judge when he's running for reelection? >> well, i think --
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>> and he could say, we have a rule -- judges don't solicit, period, for charities, for themselves. so we have a judge. he's a state employee. i take it from your answer and in applying pickering to government employee that the sitting 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 respect the solicitation speech of a sitting congressman or state legislature. i think it is the election context and the fact that the state has chosen to choose its judges via election that triggers the protections -- >> but, you know, i would think i would think it's just opposite, right, that in a case for federal judges like 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 anything to do with what rulings i'm going to issue, 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.
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>> i think that's wrong on two counts, your honor. i think there is again, where the judge can know who contributed and can write a thank you note, the idea that prohibiting the judge to asking contributes in any way -- >> well, you're i'm sorry. please. >> 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, which seems more -- >> yes. you keep on going back on that. but, i mean, do you think it would be allowable for the state to say, no, that even the chairman can't make those solicitations? so you keep on falling back, well, they allowed the chairman or they allowed 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
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that back in our face, we'll apply it to the campaign chair too. we'll apply it to thank you notes, too. those will also be impermissible. would that be constitutional? >> i think if the state wanted to adopt a system of public financing for judicial candidates, that it might well then be constitutional for the state to ban solicitations on the mcconnell theory. >> what about the answer to justice kagan's question? is it, oh, well -- >> i don't think -- >> 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. and 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.
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i think it would be quite a different situation to say, yes, we're going to have an election but no one can solicit any money for the campaign committee because, as the court has said money is essential to get the candidate's message out. >> the whole but the whole effort on florida's part is to make the selection of judges not like the political context. and you 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 i don't think so. i think there are two distinctions. one is, i do think once florida says thank you notes are ok, it can't ban solicitations. there might it might have a better case to justify its state interest if it didn't do that. and i do think, as i said, the coercion rationale applies
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differently with respect to judges and would permit limitations that don't apply. if i may, mr. 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 soliciting from those individuals. what the florida canon is designed to do is something that 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, with the judicial candidate from communicating directly with the person that he or she desires to receive the money from. >> unless it's a thank you note. >> that's correct, your honor. i think that what we're -- >> 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.
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either the intimidation issue or the effort to curry -- to say you've curried favor, i agree with that. but there's another factor here that this court has recognized is almost equal, if not equally important, which is the appearance of the quid pro quo and the appearance of corrupt influence that is inherent in the quid pro quo that the that results in a public loss of confidence in the judicial system. >> well, but there's not always such an appearance. what if a judge calls, you know, a college classmate, says, you know, believe it or not i'm a judge and i'm running for election. could you give me some money? direct, in-person or direct solicitation. but nobody would say there's any real risk of corruption because he's calling up his old friends let's say, who's not -- they're not lawyers. >> i think, your honor, that what we deal with here, in response to your question, is similar in kind to this issue of how many people are being
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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 what's judicially manageable? and 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, we're not going to try to micromanage who it is -- >> well, there's a difference between micromanaging and over-inclusiveness or under-inclusiveness. i mean, could this could be easily limited to litigants or lawyers appearing before the court. >> it could be, your honor. but then the question is what the appearance to the public is. and the second question is because it's always a question in first amendment cases, how does this weigh against the imposition on the candidate's first amendment rights? this court has recognized it did in both buckley and mcconnell that one of the reasons that it upheld it and one of the reasons that it applied a lesser a lesser standard of review was because it said that the imposition on the on the
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communicative value of the contributions was marginal. in this case, it's even more marginal. >> i be careful with that line because there's a number of justices on the court that dissented from that -- >> i -- >> and citizens united has brought that into question. >> i -- >> so assuming that's not the argument, what's the better response? >> no, i understand. i understand, your honor. perhaps it was it was not the best way to lead into it. but my point here -- >> well, you only need five votes, and there were five votes there. >> don't be too intimidated. >> i'm getting to try to get your vote as well, justice scalia. i haven't reached that point yet. but and i understand it's a high mountain to climb, but the point
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here that i'm trying to make is that this is an extremely minimal imposition of the candidate's freedom of expression, if there's any imposition at all. >> could they could florida apply this canon to candidates for political office? >> you're saying could it? >> yes. if florida says, we think it's such a good idea for the judges, we want to make it across the board, no candidate for political office can make a direct appeal for money. >> i think it would be far more difficult to convince the court that that 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, in 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
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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 a judge can't campaign you know, i'm going to be tough on crime? >> that's a different issue, your honor. >> why? that's good responsiveness, i thought. >> well, i think that's responsiveness to an issue. and i think the judges do have preconceived positions, but not responsive to an individual. >> ah, ok. >> that's the difference, and it's a big difference. >> is there really a -- the prospect of the appearance of partiality if you have a radio ad that with the judge and says,
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you know, these this is my philosophy, please send me a contribution? is anybody going to think, oh, that judge is not is going to be partial to one side or another? >> well, i think that two things are occurring there. and i think that is a widely shared perception and i think that florida has every right to say we want to further that. but 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 who has 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
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that individual in the first place asking for the money. >> i have several answers to that, your honor. >> one -- just one would be enough, but i want to know what they are. >> and i want to use every weapon i have in my arsenal. so the first answer is that at the time that the money is being solicited the contributor, if it is solicited through a third person, doesn't know whether the judge will ever find out. he can find out, but the person making the contribution doesn't know whether the judge will ever find out, whether he's ever going to receive a thank you note or not. he just doesn't -- >> and is it unlawful under florida law to put in a letter written by the campaign manager "and i will tell the judge"? >> to say what? i'm sorry. >> "and i will tell the judge." >> it's not unlawful -- >> all right. very well, then, he might know. >> but there is a --
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>> all right. so what's the second one? >> my second argument? >> what my -- >> i want to know what the differences are, which is a main point that was argued that, once you say they can write a thank-you note, and indeed, as you've added, in the initial letter you can say, "and i will tell the judge"? once florida permits those things, what is it that florida's current 7c interpretation adds to that? and if it adds nothing of significance, why is it constitutional? that's their whole argument. >> yes. >> i want to hear your responses. >> yes, your honor. that's the under-inclusiveness argument, and my response is that the under-inclusiveness
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argument has never been applied by this court to say that -- >> you know, i would prefer -- maybe there is no answer. >> well, i think there is. >> one answer is to say it does exactly the same, it adds nothing, but you don't have to deal with every problem. i've got that answer. do you have any answer that says it does add 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 by 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 if you write a thank-you note, you are not a mendicant. you are not going around holding your hat out asking people for money. but you're not relying on that are you? you're not relying on the judicial dignity -- >> i am not. >> 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, and i believe that if we're talking about expressive conduct, that it's unlikely that this court would uphold it based
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upon the dignity of a given judge. it's possible that if the action rose 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're talking about 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. but -- >> first of all -- >> i thought the whole idea of the florida 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 it dignity, call it 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 in a separate
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category. i thought that was florida's idea. >> well, i think that's true your honor. it's not only florida's idea. i think it clearly reflects the culture of this nation, because virtually every state has adopted significantly higher standards of ethics for their judicial branch than for the other two branches. and i think that goes to justice kennedy's distinction between the good and the bad responsiveness which is -- >> counsel, i think you answered justice breyer a little too quickly. if the letter ended with, "i'm going to tell the judge you gave me money," then there might be a violation of that other code that doesn't permit a candidate to do -- to try to circumvent the personal solicitation rule. >> thank you, your honor.
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i agree with you. [laughter] >> and, number two, you had started, i think, in answering 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 solicitations 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 the even in the 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 envisions what does not exist in florida and most states at the current time which is a judge being able to pick up the telephone or visit any lawyer who ever appears before him, or for that matter any non-lawyer who might end up appearing before him or before her, and ask for a contribution,
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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 recognizes that. and the effect of it -- >> we have before us a case involving a particular person. she did something and she was disciplined for it. so 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 have done, and see whether the incremental difference has any significant relationship to any interest that this rule is supposed to serve? does it -- 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 have done? and what she could have done as
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i understood your answers is the following -- she could have -- a letter could have been sent by a committee and the letter could have could have said that petitioner gave us your name and asked us to solicit a contribution from you, and that's what we're doing. and the letter could either say, "and we'll let the judge know if you gave a contribution" and -- or the candidate know, and she can write you a thank-you note she will write you a thank-you note if you contributed. or, you speak for the florida bar, so you said it would be ok to put that in the letter, but if that's not, at least you could put in the letter and under the florida law, the candidate can see the list of people who contributed. so those are the two situations. now, why was there any greater damage done by what she did as opposed to what you admit she could have done? >> well, i would say the greater damage again goes to the fact that she is personally and publicly requesting a quid from people who can be expected to appear before her.
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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 found in the other two branches, is a fair concern over the public's confidence in the judicial system. >> it's not just confidence in the judiciary, is it? i mean, to ask for a judge to ask for a quid puts pressure on people to give it. and that is a different evil than their 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 to the same degree put pressure on the person to contribute. now, is that fair or not fair? and don't just say yes because you think it's on your side because i'll have plenty of
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people pointing out to me that it isn't necessarily 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 i do believe that there is a significant difference between a judge requesting specifically a contribution or later saying thank you for the contribution. now when you add to it what if the letter said the judge will know about this later, that murkies the water a bit, although there's no evidence that's ever been -- >> mr. richard, there is something that the other side has said about your position and i'd like your answer to it. that is that what you are 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. yulee, who is trying for the first time. in other words, the florida bar has set up a system that works in favor of incumbents, yes,
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current officeholders and the rich. >> i disagree with that, your honor, and i find it curious that the petitioner would suggest that if we take the restrictions off of incumbent judges so that they're 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-incumbent judges. it seems to me that it would. but we're also dealing here in an area in which there is no evidence either in the record or in the literature to suggest that it makes any difference and also -- >> well, i'm sorry, but you, up to this point, you've been saying what a significant difference it makes whether someone can solicit in person or not, and that's why you've drawn the line there. and now you're telling us, well, it doesn't make much of a difference at all.
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>> no. >> it seems to me that it's self-evident, particularly in judicial races, where that the prohibiting a form of raising funds is to the great advantage of the incumbent because the only way that, in most judicial racesm the judge -- incumbents are going to be challenged if you have somebody who can get their own distinct message out. >> well, i have two responses, your honor, and excuse me if i didn't clearly express myself in my response to justice ginsburg's question. but what i'm saying is, clearly when you tell an incumbent judge that that judge can personally solicit money, that's going to give an incumbent judge, who has far more intimidation power, an advantage over a non-incumbent. and as to weighing which is going to give more or less advantage, it's difficult to answer that question, and generally this court doesn't find itself in the business of equalizing the playing field in any case.
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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. it -- 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 difference 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 candidate's free speech. no matter how many people the candidate is talking to, the candidate can still say anything he or she wants to about
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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 to put any restriction on it. 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. and the court has said that that only rises to constitutional level when the restriction is so great that you can't 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 -- >> and -- >> where did we say that? i don't i don't know the case that says that -- >> that says -- >> that it's only bad if the restriction is so great that you cannot broadcast your message reasonably? >> no, that was -- >> what law?
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that's the only test, you can have all sorts of campaign all sorts of campaign restrictions so long as they do not prevent and we're going to sit in judgment about whether they prevent the candidate from -- >> no, what i referred to -- >> what case are you referring to? >> what i referred to, your honor, is the discussion in buckley and when it said that that the restriction on campaign contributions and the amount of a contribution, that it's -- communicative value was in the ability to be able to broadcast the message, and that it only became constitutionally significant if it was so draconian that the person could not raise enough money to reasonably be able to broadcast the message. now, that's not the wording that the court used, but that was the essence of what the court said. my only point here is there's no nothing to suggest that florida
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that canon 7c(1)'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, appreciably, on a candidate's expressive ability. and i think you fairly have to connect that to what florida, on the other hand, is trying to avoid, which is this appearance of the this quid pro quo and the appearance of corrupt influence which is a significant -- >> all the first amendment requires is not that you have unlimited capacity to speak, but that you be able to speak a reasonable amount. is that that what the first amendment demands? >> well, i think that you be able to speak as much as you desire --
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>> as much as we think is reasonable we, the judges. >> i think that that's more broadly stated than you, the 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 you reach the level where you have 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. and i mean the prohibition was limited to the important area. it's face-to-face that is important. and now you're saying it's no big deal because they can do all these other things. how do you reconcile those two positions? >> well, i'm not saying that it's no big deal. i don't think we can ever say that when we're dealing with free speech. what i'm saying is that this court historically has weighed the degree of imposition against the substantial interests that the state is attempting to serve. in this case the state is serving an interest that this court has recognized, at least in the area of the quid pro quo,
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that the state that has not only a substantial -- >> where does it come from justice shall not be sold nor shall it be denied? i mean, that's at least 800 years old. and if that defines the role of the judge, which i think it does, you're saying that it isn't. it is a 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? but the interference, even with raising money, which is at one degree from speech, is small. >> i believe it is relevant. i believe that this court, in almost all of its major first amendment cases, has asked that question. >> well, 800 years ago, judges were not elected. i mean, i appreciate the challenge you're under. you're kind of backing and filling. the fundamental choice was made by the state when they said we're going to have judges elected, and i mean, you're kind of, as i say, you're trying to patch the problem there. but, i mean, you have a situation where the people in the state have said we're going to have judges elected and we're going to recognize that you can contribute to judges because of there are contribution limits. it seems to me you you're under
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a great burden in trying to figure out how you're going to fix that without contravening the first amendment. >> it is a great burden, your honor, and -- >> why is it a great burden? does it change because you elect the 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 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 that. and what's more, in order to change the florida constitution, 60% of the voters of florida would have to vote to change it, and a substantial number of the voters in florida have voted to change it unsuccessfully, and so what we're faced with is we're faced, as we said in the brief with the reality that florida is trying to weigh two 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
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of corrupt influence. >> if we looked at 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 in who appear before that 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 the great the large percentage of the contributions come from practicing lawyers. and i think that that's where judges naturally seek the
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contributions. thank you. >> that could be either because lawyers expect judges to respond by favoring their cases or it could be that lawyers care more -- >> i think -- >> about who the judges in the courts are. 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. it just shows that lawyers want good judges and care more about it than the average citizen does. >> i think that's absolutely true, your honor. but i think that what we're concerned about is the two things that this court has identified in the past, which is avoiding the potential for corruption that 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 am 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
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persuades this court to recede 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.
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>> thank you, counsel. mr. pincus, you have four minutes left. >> thank you, mr. chief justice. i want to start out by pointing out, because i think it's important, that all of the examples that my colleague used about buttonholing people in the hall and calling people one on one are one-to-one, in-person or in-person over the phone solicitations, not the kind of written communications that are at issue in this case. and 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 to keep them separate -- >> 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 and i know you're going to be here some more 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 a thousand dollars, 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'm writing on behalf i'm one of the people who judge smith personally selected to solicit funds for his
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campaign and then say the rest. and i think the difference in coercion there is really immeasurable and doesn't rise to the level of a compelling interest. i think it's important to make another point, which is my colleague said a reasonable compromise and maybe if rational basis applied here, this would be a -- >> a rational basis but i think until citizens united in one opinion, which wasn't the majority in the more recent case, the court had never used the words "strict scrutiny" in respect to campaign contributions period. and i don't think it's used the words "strict scrutiny" either, ever in respect to first amendment limitations in respect to what judges say. am i right about that or wrong? i'm not positive. >> i think it did use "strict scrutiny" in white, your honor and i think that was a case about what judges say. >> in white. >> but it also has used the strict scrutiny standard with respect to charitable solicitations, and i think it will be an odd state of affairs if charitable solicitations got less protection under the first amendment than election-related solicitations, given that
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election stands at the core. >> did 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 has found compelling with respect to all elected officials. so i think if you expect accept my colleague's argument that preventing the appearance of quid pro quo corruption is sufficient to ban solicitation then there's no reason why or florida couldn't say, such a great idea, we're going to apply it with respect to legislators i think you the focus here, i think, really ends up being on coercion.
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>> that's not -- >> the 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've promised you'd maintain. but that's not the focus of a judicial election. >> well, i want somewhere -- >> can you point to -- >> i think corruption -- >> i hope you don't want someone who keeps to a position merely because you gave money. >> that goes to a different question, your honor, i think, which is bias. and 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 court's 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.
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>> thank you, counsel, counsel. the case is submitted. >> loretto lynch was on capitol hill for her hearing on wednesday. that is on c-span. will here live at 10:00 on c-span. lynch is the current attorney. her tenure started in 2010. miss lynch is a graduate of harvard university. >> the sunday, francis jensen
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and the discoveries about the teenage brain. >> cause-and-effect, consequences action is not as readily accessible to the frontal road -- loebe. they love the hormones are changing in the human and women. you have not seen life until you hit teenage years. you have to respond to these new things rolling around and grasping on. they are trying to do trial and error. it is a roller coaster experience that we watch. >> thursday night on c-span.
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>> the congressional budget office predicts the deficit will shrink. there was a press conference on monday with the updated budget projections. this is one hour. >> hello, i am very elmendorf. the cbo has released its outlook and i will summarize the report and then we will take questions. the federal budget deficit which has fallen sharply in the past few years, is projected to hold study relative to the size
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-- steady relative to the size of the economy. the on that, the federal debt will increase relative to the size of the economy which is historically high. that is based on assumption that current laws governing taxing and spending will remain the same and are built upon economic forecasts. according to the forecast, the economy will expand at a solid base in 2015 -- pace in 2015 and following years. the gap will be eliminated by the end of 2017. as a result, the unemployment rate will fall farther and more people will enter or stay in the labor force. beyond 2017 we project inflation adjustment to gross domestic product will grow at a rate notably less than the average growth during the 1980's and 1990's.
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with me address the budget outlook first and then turned to the economic -- let me address the budget outlook first and then turn to the economic outlook. the deficit will be less than 2014. this year's deficit is projected to be the smallest relative to output since 2007, close to the 2.7% they are averaged over 15 years. although the deficits remain roughly stable as a percentage of gdp through 2018, they rise after that. the deficit in 2025 is projected to be one point $5 trillion -- $1.5 trillion. we expect the federal debt
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held by the public will amount to 74% of gdp at the end of the fiscal year, or than twice what it was at the end of 2007, and higher than any year since 1950. by 2025, in our baseline projection, it rises to 79% of gdp. when cbo last issued projections in the summer, we projected that under current law, that would exceed 100% --debt would exceed 100% by 2025. such a large and growing debt would have serious consequences, including increasing federal spending on interest payments, restraining economic growth, giving policymakers less flexibility, and heightening the risk of a financial crisis. why will deficits and debt increase under current law?
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on the current production, outlays rise from 20% of gdp this year, which is about what federal spending has averaged over 50 years, 222% in 2025 -- to 22% in 2025. the retirement of the baby-boom, rising interest rates on the federal debt. consequently, under current law, spending would grow faster than the economy for social security, for the major health care programs including medicare, medicaid, and subsidies offered through exchanges, and for that costs -- net costs. in short contrast, mandatory
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spending other than social security and health care, would shrink relative to the size of the economy. by 2019, outlays in the three letter categories would fall below the current -- latter categories would fall below the earliest year for which comparable data have been reported. revenues have been projected to rise significantly by 2016. buoyed by the economic expansion. projections based on current law, revenues equal 18.5% of gdp in 2016 and remain between 18% and 18.5% in the coming decade. revenues at that level will represent a greater share of the economy than the 50 year average of 17.5% of gdp. it would still be less than outlays by growing amounts in

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