Transcripts For CSPAN3 Politics Public Policy Today 20240622

Inmates have been put on death row for. That was my thinking. As this illustrates, there is no perfect, ideal way to do it. Things are going to be slightly different. Most of us are in the same place. When i look at my story davids story, my story, they look alarmingly similar. You might think we colluded. They often have a very similar lead, a similar first quote. Newspaper work is, in a way a fairly narrow kraft. Wouldnt you concerned, though if we actually differed on the outcome, who won and who lost . The thing is, they are both wrong. What you really found from that that there are seven justices who didnt question the constitutionality of the Death Penalty. What i thought was stirring was that it was a narrow but i thought the end of my lead was unequivocal directive that states could experiment with ways to execute people and the court wasnt going to get in the way of that. Obviously, as you said i this i i put it in the fourth graph that the two of them dissented. I thought it was interesting that the other two liberals didnt. I was specially interested and i dont have a good answer for Justice Sotomayor, who i think of all of the justices is the most questioning of the Death Penalty and whether it is fairly carried out. Maybe it means that it is going to mean more later if she does that. Maybe that would show some sort of momentum rather than the justices that feel that way. I thought that was an interesting part. Now that i hear your reasonings, i would soon put my head in a paper bag than write that piece. I was going to respond to something that bob said. He said, i leave it to the audience to see how different they really are. He was suggesting they might be on the same side. I should mention. I dont write our daily stories the way these reporters do. Lawrence hurley did uz thatoes that for us. I will often write a sub bar or some sort of analysis piece. I did a separate on the senior liberals calling for a reexamination of the Death Penalty. I had to be aware how long i had been covering this. I arer in 1994 that Harry Blackman said, i will no longer tinker with the death. And i was around in the late 80s when thurgood martial and William Brennan dissenting from Capital Punishment saying they categorically were against the that. Thats the last time we have had that. The fact that ginsburg and briar were hinting that they would go that way. They werent saying they were. They said we would like to review it. Justice stephens said in the last lethal injection, case two. It wasnt until he got off the bench that he called for it stronger. Some suggestion an answer to bobs question why not sotomayor and ken began. For 20 years, you are reviewing lastminute requests for stays of execution on vacation, pulled of the opera and having to vote on these things. The liberals would say, there is no rhyme or reason to who lives and who dies. At some point, you would probably get a queasy feeling in the pit of your stomach. I agree with that. Orrin warren kur wrote a piece on that. I thought there was one other thing thatch your attention. Suppose year after year you have been had to approve a lastminute request on some sort of question about an appeal in a Death Penalty case. If you said, there are no grounds for further appeal and then you learn maybe reading in a newspaper or whatever that that fellow was innocent. I speak for myself. I would find it, wow, i sort of feel as a justice, it is our responsibility to get these right. Imagine if you have then learned that you have turned down a lot of appeals for somebody who said we need more money to investigate this or look into that and you said there are no grounds for that sort of appeal he looked at it, read it and turned it down and then learned the person was innocent. If that happened once and then again, i would think, i cant trust the system. Do you want to clear the way to somebody to be actually executed at 11 00 at night when you have had this experience last year and the year before and the year before that that these people were innocent. Thats one of the things that might change your view over time. So speaking, bob, to your question of why Justice Sotomayor didnt join. I wonder. She wrote how what was going to be done to the risprisoners was burning them at the stake. She didnt want to distract attention from that message by putting her voice with the other two on this broader question. Does that make any sense . It could be. I dont know why she wouldnt. This issue was, the oral argument in this case was the most contentious ive seen in my short, relative to everyone else time at the court. It was really nasty and there were really you saw, how deep the divisions are among the justices in this issue. This is the one where they answered each other and kagan brought up the burning from the inside. Alito answered her. They werent waiting for the advocates to say anything. The chief justices findly gave more time to the advocates to a degree thats unusual even for this court. We havent let you talk. So he gave them more time. I think there were some real bad feelings about this case, drug, and issue. I think we will see that more and more. This was a really unusual situation. In january, four of these oklahoma murderers had this appeal there raising this question. One of them a guy named warner, was about to be executed. So on a thursday night they allowed warner to be executed with four dissents. Then, the next week, they essentially granted his case. They granted the case of the three remaining i thought, there is the way to have an unhappy work place. Five allowed the guy to get executed and four granted the case. From the beginning, there was a real divide on this one. Didnt there used to be a custom of a courtesy fifth vote for a stay in these death cases. Did that disappear this year tony . I even remember when it was called the gentlemans fifth. That was before there were any women on the court. Yes, it would be since you need four justices to grant cert and five to grand a stay, if there werent enough votes for a stay someone would come over so that the person wouldnt be executed while his case was going to be heard. You are right. That seems to have disappeared. We dont know why this happened in this case. Some said that maybe the cert papers werent before them. It does. It is not it is not pretty to have somebody executed. Given the green light to the execution and a few days later, they grant cert. Let me ask a slightly more substantive question. Do you think it made any sense for brian and ginsburg to call for people to bring challenges to the Death Penalty to this court . I suppose they know Anthony Kennedy better than any of us. Hasnt he been a complete hard liner on criminal punishment issues since he got to the court. On the Death Penalty, he has been in the lead in cutting back on categories of people and crimes that are Death Penalty eligible. It goes a little to the point that joan made a while ago. Putting this on the agenda is not going to make it any worse. If you can get four votes to put something on the agenda, maybe you pick up the fifth vote, maybe you dont. You probably dont make life ors for ir side. What if your view is, art, that this is a legal challenge four or five years in the making. Who knows who is going to be on the court four or five years from now. It is not going to be something that is going to change in six months. Briar was saying there should be a broader, wellthought out challenge to Capital Punishment across the board. I suppose the question for antiDeath Penalty advocates is, how do you stop some lawyer from somewhere in the country from filing that tomorrow who wants to go to Supreme Court and has a client on death row and feels his obligation to get that up there. I think the answer is probably you cant. That seems like a question for you, art. Yes. There are thoses of lawyers around the country with cases that dont listen to me. Sort of responding to my own question about Justice Kennedy, one thing he did this term that surprised, i think, everyone, was his concurring opinion sort of out of the blue on solitary confinement. Did any of you pick that up and write about it . It is not out of the blue, actually. He has talked about that before. But it was out of the blue in the particular case. It was unusual for the case but it has been a concern of his. Actually, he it might be his interest a little bit in some internationale issues that he has stepped back from some big issues to call attention to some problems. There is an issue where someone ought to bring a case. There is a case in virginia or South Carolina where an aclu attorney told me art in a lot of these states people are automatically sentenced to solitary confinement on death row. In other words, you dont have to do anything bad or you dont have to be particularly kennedy quoted all literary figures saying this is in a fate worse than death. So many people writing separate opinions concurrences, dissents taking some big view thats speaking to a broader legal audience and sort of setting the stage for future cases. Then, it gave rise to a response from Justice Thomas. This wasnt one of his 35 page attacks on the administrative state. It was a paragraph in which he said, these peoples living quarters are much more spacious than their victims. Right. Which struck me as verging on inappropriate. Did any of you express directly or sort of indirectly by quoting someone else opinions about that . I certainly would not judge it inappropriate. He wrote several opinions dissents or concurrences in the Death Penalty case where he went to great length and told story of the victim and what the victims family the devastation of this murder. Thomas view was were deciding here a very abstract sort of ethereal question of an appeal 20 years down the road. Weve sort of scrubbed away the victim and the impact of this horrible murder. I would be the last one to say it is inappropriate to write that. I thought it was a different, important perspective. He included a picture of the victim in one of the cases too, as part of the opinion, which was a departure. Again, i think we are seeing different ways that the justices have decided they are not just speaking to each other but also speaking to the public calling attention to things that are important to them. To your question, art, this is not some piece of legal reasoning that needs an outside perspective. I think the average reader can draw his or own conclusion about the appropriateness of the remark. You wrote a story about ten days ago about the justices styles when they announced decisions. You said, for some, it is an art form. Can you tell us a little more about what you wrote and why that was a worthwhile story . Well when you are up there, the nine of them have a distinctive approach to how they want to read their opinion. Actually Justice Thomas doesnt speak from the bench. Sometimes he will make a couple of jokes. So you get a little bit of his personality in it. The justices are a group that have really traveled a long way from the days of Justice Byron white who used to read like a sentence and then say, and you can find it in the opinion when you read it. They tell more of a tail. Justice kagan likes to talk about the facts we have in the case. Both she and the chief swrus it is have sort of a nice come here and listen to my story way of approaching it for the spectators in the courtroom. Justice guns Justice Ginsburg takes a lot of time with her reading. She hands out the rendition for what she says to those of us that are reporters so we can quote directly from it. It adds to think of the sort of suspense that is in the room. We dont know what opinions are coming on what day. When the chief says justice spitzer will now announce the opinion in 1442. We are like oh my gosh, are we going to see what direction it will take by virtue of who is going to read it . That happened in the texas housing case when the chief said, it is going to be justice Anthony Kennedy. He is right in the middle. It could have gone either way. The suspense was heightened by which side he would take. That was an unusual reading for him to say, im going to essentially site with the liberals and uphold this expansive reading of the fair housing law. Some of these justices play along to make it more of a tale getting to the culmination, the climax at the end with whether they have said yes or no. Just a post script to what joan was saying about the opinion announcements. From what she said, i think we could all agree that it would sure be nice for the public to be able to hear them or those opinion announcements. But the court has a special disdain for that because they sometimes allow the audio of the oral argument to be released fairly soon afterwards but the audio of opinion announcements they send to siberia. They are not public until months later. When the National Archives processes them. The reason for that is fairly clear. Past and current justices have said that sometimes, they hear a fellow justice announce an opinion that they were a part of and they think gee whiz, i didnt agree to all that stuff. The opinion announcements are not distributed to the other justices in the majority so that sometimes justices will sort of put their own spin on their majority opinion and they will go off script sometimes and justices then end up afterwards saying you know if i had known what he or she was going to say i wouldnt have joined the majority. So i think for that reason they dont want opinion announcement the audio, to be out there quickly and be treated by us as the sort of official summary of what the opinion is. I was just going to say that sometimes there is no suspense of when they announce them as Justice Alito began one. I cant remember the defendants name. He said, the defendant said he would take care of his girlfriends two children when he sent her to be a prostitute in washington, d. C. It doesnt take a bloodhound to know how that one is going to come out, i dont think. There are even instances that tony was saying that some justice who was listening to the announcement said, i didnt sign on to that. There was an instance where Justice Thomas was announcing his own opinion and he came across a line that he wasnt sure he had signed on to. It was about synthetic drugs called bath salts. He said Something Like, i have no idea what that sentence means. So tony, at the National Law Journal, you write for an audience of lawyers. How does that effect what you cover and how you cover it . Well not as much as you might think. My previous newspaper was usa today. So there is sort of a dramatic difference between the coverage there and where i am now, mostly in terms of length. When i first started at usa today, even before john went there, a 600 word story was really long. That was so you would summarize a Supreme Court decision in 600 words or 400 words. Thats a challenge. But still even now that my audience is mainly lawyers at the National Law Journal not every real estate lawyer knows about securitys law or criminal defense lawyers dont know about arissa. So you still have to use plain english as much as you can. I can use habeas corpus and not have to define it in every story. So there are some advantages. What was the oddest story you had a chance to write this year . I think it was the saga of Howard Shipley, a lawyer with fully and laudner the first time in years when the court threatened to discipline a lawyer for the cert petition that he wrote. To make a long story short Howard Shipley filed a petition in a patent case which thats already a challenge to make it understandable. It turned out that his client, a german industrialist, who was not an english speaker, insisted on writing the brief, the petition himself, when the lawyer said, we really need to change this, he said no. The lawyer decided to go ahead and file the petition anyway. It was complete gibberish. It was almost illegible. There were acronyms and all sorts of things you would never want to subject a generalist court to. The court threatened to discipline him for it. To make a long story short Howard Shipley hired paul clement who was able to fend off the discipline and the Supreme Court discharged the show cause order but they did issue a warning to lawyers that they really have to use plain english in their petitions and they also cant delegate the tasks to their client. It seemed like an incredible story of a nightmare client telling the lawyer you must do it this way. Other lawyers said the client doesnt rule. The lawyer has to ethically file the petition or file whatever document is understandable and you cant just let the client rule. I also had the chance to interview the client. I emailed him on the off chance he might be willing to talk to me. We met in person at nashville airport. He was on his way to skrerm any. He said how terribly sorry he was, he was never going to write another brief again. I dont remember this happening before but it happened this term was the Court Granted a cert petition for a guy named chen suing the city of baltimore. They are very proud of the fact that they have someone to go over all the cert petitions and check them out. They grant less than 1 out of 100. So they grant chen and no one was able to find mr. Chen for months. They couldnt find him. I would have thought wup clue was. He said he bought his house in baltimore for 900 and they knocked it down without telling him. I know prices are not high in baltimore but 900 . To make a long story short, they couldnt find him. By the time the argument came they let go the case. They werent having mr. Chen back after all that. I talked to a lawyer for one of the legal clinics who said we should have just said,we were representing him and taken the case. The guy was gone. In addition to briefs that are written in sort of half german, like the one that you wrote about tony, the court itself has had some stuff and opinions this year that seem to be pushing the edge of legal writing. In yates against the United States. He cited dr. Seuss, one fish, two fish, red fish bluefish for the proposition that a grouper is a tangible object. In the spiderman case, she cited spiderman many comics and quoted from them. Is the court just getting more informal sort of across the board . Is kagan an outlier on this . Is that charnging around there. The chief justice seems to be picking up a little bit in that writing style in a case that started monday. He had the phrase, what chumps, exclamation point. Scalia is still the world leader. I think the justice made up the term jigery pokre. Yes. There is this delicious twitter feed which talks about how Justice Scalia might rewrite the names of childrens books. The one i like in particular was charlie and the closely held religious chocolate factory. Justice scalia also i thought showed his age a little saying just consult the nearest hippie. Thats sort of another hashtag too. The nearest hippie. Also showing his age somewhat, i think. Do we have hippies anymore. I thought that was interesting where he did that in the samesex marriage where he was talking much more directly where he said, dont celebrate the constitution. It was a very direct sort of message in a way that i dont think i have seen him use before. That does seem a little kaganesque but i also think part of the answer to Justice Kagan is she is the junior justice. She is not going to get the Affordable Care act decision. She has to have fun with what she gets. Dont you think, day to day and week to week telling law student who to follow john and kagan are easy to read. Sometimes they are humorous and sometimes funny. Both are good writers. That shows out in the first part of the decision. When you read them you can tell what is going on which we cant always say about Supreme Court decisions. Speaking about not always understanding, there is a category of question that i have tried to ask every year on the panel. I cant exactly ask it this year, because there wasnt an example. I am going to use an example from last year to get the question. How do you cover, specially in five minutes, a case where the end of the sill abus like this reads like this. Scalia announced the justice of the court and delivered an opinion, part one or two of which was for the court. Thomas and alito joined as to parts, 1 2a, and 2b [ 1 ]. Ginsburg and soto my ormayor joined. Thomas joined. You have got three minutes to write something. How do you manage . That was from last year. That was the utility air Regulation Group the epa case. Thats the one i would like to do the rehnquist suggestion. Well get to that one tomorrow. You know, you do your best to report the bottom line and then you have to pars through that. I remember ages ago, there was one of those renditions with everybody joining in part and this part and david souter disappeared. There was no part that he ended up with. Usually there are a couple each term like that but not ones we need to report immediately so fast. You can take the time to figure it out. This is such a reading job. People think of what kind of reporters we are in washington, d. C. So much of our beat has to do with taking out a why el low highlighter and going through the opinion carefully. The scary thing is the one we all remember from three years ago in a Health Care Case where john roberts writes the opinion that says, this law cannot be upheld under the commerce clause. A big section. Another section is but it can be held up. There is the potential for all of us to rush forward with the wrong story. There was nothing like that that i recall this year. I thought the thing this year that was tough and i dont know the answer. Maybe you guys do. I dont think anyone knows the answer. It was the epa case of this year where it didnt exactly strike down these toxic emissions, regulations. It did say they had adopted them improperly by not considering costs about you then it said they dont have to go back and do a whole cost benefit analysis. So they sort of sent it back to the lower court. I think until the lower court acts, it is a little hard for any of us to know exactly what that decision means for those regulations. The other thing about that one, we have to worry about that. Lawrence hurry who was writing it, had to figure out because it would move a market, how much, what kind of a blow is struck for these regulations. The court the majority itself said exactly what bob was just repeating, that they werent actually striking them down. They were saying, go back to lower court to see if they can stay in force but elena kagan used struck down. It is the majority view that prevails, not the dissent view of what the majority just did. In a complicated case like that which had to do with how epa regulates power plant emissions differently from how it regulates other stationary source emissions thats about as much as i can tell you about it, how much preparation do you guys do in advance so that you sort of know the underlying law, you know how the epa went about making its regulations . How much of a head start can you get on stories, and specially in technical cases like that . You try to be ready in all of them. The whole point of the job is to spend months of preparation in anticipation of a few days of crazy work. The environmental cases are easily the hardest. The court tends to be less skrutable in those cases than other cases. You do what you can to get ready. It always feels like final exam week in college. You spend the whole semester studying this or that and regurnlg tait it all in one time. The good thing about a case like that, we get a chance to look at it closely when it comes up to be granted and then comes up three months later during the argument and three, four months after that, you have to write about it. I did try to immense myself in that. As you know, the epa and clean act cases are very complicated. It is the case that by the time june comes around you have a good sense of the bottom line. This regulation was 25 years in the making. It was the Clean Air Act of 1990 congress had a list of 186 hazardous air pollutants. Go study them and regulate them if needed whether it is appropriate or necessary for the public health. The Clinton Administration had a long time doing it. Clinton left office and george w. Bush came in. The court said, you really have to do this. Obamas people came in and started the regulation. They proposed it in 2012. It is supposed to go in effect this year. The Supreme Court says, sorry, you should have considered costs from the beginning, try again. Thats the short version. The other thing most of us have is help from colleagues focused on the environmental beat. My story ran along with the by line of Carl Davenport and they bring Specialized Knowledge to the subject. The preparation and this sort of study is what makes these reporting jobs different i think, from any other reporting jobs. I did a lot of other things. It was rare that i would ever leave work that i hadnt talked to somebody on the phone. Now it is quite common that i dont talk to anybody on the phone because all i have done is read, and read briefs and read the rescissiondecision below and try to familiarize yourself to ask an intelligent question. It is an incredible amount of getting ready and getting up to speed. It is what makes the job a fantastic job in that you learn about all these really interesting issues that if you are in some other beat, you would just be doing that. It is learning about all these issues that makes the job, i think, so fascinating. It sound like you almost did go to law school. You wouldnt like to be out covering don trump on the campaign trail. Whenever i hear about adams downward spiral of the career makes me think it was a good decision not to go to law school. Ive plainly blown it. People are often quite surprised to learn that there is no advanced word on what decisions will be coming down which day. Just how much, just what do you know that the tourists sitting in the back of the courtroom doesnt know and when do you know it . All we are told is whether it is a regular day or a heavy day, and regular means four opinions or fewer right . Or heavy day is we dont know what that means. We dont know what it means. When i first started to cover the court, they would tell you there are three decisions coming today but then they stopped because one day they said three decisions and only two came out. We nosey reporters started sniffing around to see what happened to the third. So he they shut that down and made it more general. Not every court keeps it a secret as to which decisions are going to come out on which day. The california Supreme Court will give the public a days notice or two about which cases are coming up. I have heard just two theories about why the court doesnt do this. One is they want to protect their right to pull back a decision at the last minute. So if they say the samesex marriage decision is coming out tomorrow and it doesnt that will cause speculation. The other one is that they have concerns that even the announcement that the exxon valdez case is coming out tomorrow, that will cause the markets to fluctuate on exxonmobil stock. They dont want to do that although speculation could happen anyway. So those are the two theories i have heard. We do know by process of elimination, whats coming on the last day. They are very sophisticated people in the press room of whom i am not one who try to game out who might be writing a decision based on who has written from that sitting. I would like to say one of the great things about the court that sort of goes unappreciate theed is i think the court is one of the last institutions in washington that plays it straight and doesnt leak opinions in advance and gives everybody the same opinion at the same time and do with it as you may. Over the years over the decades that i have lived in washington with each Administration News has become more political and for example, the white house doesnt almost announce anything that hasnt been leaked to a Certain Group of reporters that will put it out in a more favorable way. Every one of the agencies does that. When the attorney general is going out to give a speech on to some legal topic. This most recent attorney general and the attorney general before that, i dont want to point to one administration or the other, they would say, look the attorney general is going out to San Francisco to give this speech. You are a fairly cooperative, good reporter. We will give it to you but we wont give it to her or to him. That creates in my view a sort of builtin corruption in the news business. Which is, if you want to be on the in and get copies and alerts about the announcements, you have to write fairly favorably about the secretary of defense or the attorney general. If you write critical stories about him, they are going to say, well, gee, we are not going to alert you. He with we will alert him. I am glad i dont have to participate in that. You basically would say if you are a reporter, do i really want to give the agency a hard time for this announcement, because next time ill be screened out and my competitor will get the story and ill look bad. I think the court has this very old passion fashioned and good system they put out the opinions at 10 00. They dont leak. You dont read it the weekend before. The Supreme Court is going to do something on monday. Sources have told the bla, bla, bla. I think it is one of the dprat things about the court and the way they handle the news. John i mentioned when i introduced you, that you had recently published a biography of Justice Sotomayor. What kind of access did you have to her . What limits about she put on that access . How did she like the book . This one wasnt a biography the way the books i did on justice ska leecalia and oconnor was. It was more about how she ended up getting the nomination and the trajectory of her rise matched the trajectory of latinos in america. I did a lot on the confirmation process and found out a couple of interesting facts including that she and john roberts had crossed paths back in 91 when she was first early 90s when she was first nominated to district court. Weigh actually in the h. W. Administration as one of the screeners. Thats how they first met and also found out a little bit about, again, how she was positioned along the way and relevant to the fisher case we have coming up and how she worked behind the scenes and the first time they considered the affirmative action case brought by abigail fisher. She allowed me to come talk to her. She would let me use what she said but it couldnt be quoted in terms of specific interviews with specific times the way i did with Justice Scalia, who when you think of justice oconnor, sotomayor and scalia, you wouldnt have thought it was Justice Scalia that gave me the most unfettered, ruleless access. It was a little bit of a hybrid between oconnor and scalia. Not only have we had a biography about Justice Scalia we had a play. Did all of you see that and want to give a minireview. Bob . I thought the actor who played him was astounding. There were times if you closed your eyes and listened to him, it was like you were in the courtroom and hearing scalias voice from the bench. He captured him spot on. I enjoyed the play. My only sort of quarrel with it was i thought the setup for it, hiring this liberal clerk, i thought that she was so incredibly rude to him at the beginning that there was no way that anyone would have hired someone who had been so rude, not Justice Scalia. I thought the setup was a little odd. I thought it was very good. I enjoyed it very much. In addition to a play we now have an opera thats going to have its world premier a week from saturday called scaliaginsburg. David, you wrote a piece about them and the opera about ten days ago. I bet a lot of people in the audience dont even know about this. The fellow who is running this called and said do you normally cover opera . He wanted me to come out and write about some other operas. I said, no, i dont. I did write a story a lot of my colleagues have written a similar story about this wonderful, interesting, odd couple relationship that they have been good friends from way back, since the early 1980s. I got a lot of interesting emails about this story. I thought oun the one hand, one really good part of washington that you dont see anymore. They have been friends together. They are on the opposite sides politically, idealogically. They really have a warm feeling for each other. It goes way back. It is family. It is personal. They have traveled together. They can skroek together. With this thing with g. W. , she said, ruths feminist friends made fun of her. We were on this elephant. She was sitting behind me and she leaned up and said, i was told it was a matter of distribution of weight. They are really sort of entertaining together. The truth is they have the absolute opposite views on legal matters and it doesnt seem to change. They talk right past each other. Scalia will be talking and Ruth Ginsburg will say, you know that argument doesnt work. He will say, ruth, we are not going to agree on this. I thought they were a lot of fun to write about. As far as the opera, this is Ruth Ginsburg sent me this. It is wonderful to read. The fellow that did this has footnoted all of it with actual citations of their statements. He has used their words. Scalia is singing about, you justices are blind, you find things in the constitution. He gets in prison for excesscy dissenting. Ruth ginsburg breaks through a glass sealing Glass Ceiling to rescue him. Maybe i will switch to opera. It sounds delightful. I think the line i got from reading your story was that the composer of the opera said that a lot of what he heard scalia saying dissenting from the bench reminded him of these rage operas in italian opera. He was a music major at harvard and yale and went to law school. He actually said he was reading these dissents and said, now, here is an op pore retper ret tick character. I mentioned that i served as the marshall of the Supreme Court of la man cha. All it did was make me into a hypocrite for when i criticizes the justices for taking part in this kind of frivolousness. The justices are out and about constantly. One of the things they like to do is have mock trials where real Supreme Court advocates argue fake cases about hamlet or don quiote. This was a case where two leading Supreme Court advocates argued about whether don quiote needs to be committed and others of the d. C. Circuit. They raise money for the shakespeare theater. I dont know what the hell i was doing there. You did a good job. I also mentioned, introducing you, that you were a finalist for the Pulitzer Prize this year. Im sorry you didnt get it. It was for a series called the echo chamber. Why dont you tell us what it was about . It was about the lawyers including paul clement and Carl Phillips and Adam Goldstein whoed aam referredwe referred to. We have had so many repeat players coming before the justices. What we decided to do at reuters was to actually try to measure this. Our data team went back through 17,000 petitions and isolated on 66 lawyers who had a remarkable success rate going back over a decade, we found that fewer than 1 of these lawyers had 43 of the cases before the justices and that 51 of these 66 lawyers had very deep corporate ties. We were looking at who these people are, why they are so successful before the justices and then raised the questions of whether the justices have added a new criterion to their decisions on which casings to take and whether it goes to the merits of the lawyer arguing, not just merits of the case. So we were able to do a lot of data work. Then, i went and interviewed the justices about this saying are you leaning toward repeat players because of their skills and expertise and possibly ignoring lawyers that arent as polished but have very good cases on the merits for getting cert granted . They basically said, we like it the way it is. We are a professional court. We like the professionalism of these repeat players. We think it is important we have the highest quality lawyering possible and across the board, liberal to conservative, felt like this is the way it should be. And then after the series ran, justices scalia and kagan happened to be onstage in louisiana and someone in the audience asked and they said yeah, thats true. We said it, we like it. We felt it was important to at least let people know what happens up there and how the truth is your chances are better about one of these folks who cost a lot of money at the search stage. Unless theyre doing it pro bono. Which they tend to do once a case is taken. You know, its the search stage is the heavier lift than the oral argument stage because youre competing, of course, with thousands of cases each term. And the justices themselves say we know it when we see it. We know a good case and were not missing we are not missing issues. If its a good important issue, it will be back. Do you have a sense joan of what it costs to hire one of these guys for a cert petition . Yeah. Some of these lawyers especially the group we have out there now practicing who are former solicitors general they can charge a thousand or more per hour for the time spent on a cert petition and even to do an amicus can be five figures. So in some cases are referred to that somebody might do it pro bono if they think its got a good chance and they then will have the opportunity to argue before the justices. This phenomena of the lawyers drifting towards certain highquality lawyers has occurred at the same time that the docket was contracting that theyre hearing fewer and fewer cases. So the skill of these very highpriced lawyers who can come in at very, very high hourly wages or in some cases somebody might charge a flat fee, like 50,000 or 100,000 for the runup and you know, it varies by firm. You know again, theyre trying all different ways to get the attention of these justices who have thousands of cases before them and at the same time they seem to be reluctant to want to wade into any areas that they dont feel are particularly sound. We didnt mention this, but i know all my colleagues know about the new process they have about relisting cases to make sure they really, really want to grant a case. In the past they would get all the petitions and decide, okay what do we want to grant and then theyd grant. Now they are holding over that decision for at least another week to decide do we really want it because the clerks are risk averse and the justices themselves are risk averse. They dont want to take a case that they dont feel is perfectly teed up. And i guess they had a few experiences where they granted cert only later to dismiss it because they found some flaw procedural flaw or Something Like that and this seems to be a check on that. Right. I said id leave some time for questions. Weve got ten minutes left so those of you who have questions, im not going to call on you at your seat. You have to go to one of the microphones so cspan can hear what you have to say. Yes. A deadline, and a case, first of all do you have some systematic way of looking for words like compelling narrow, and looking for the color commentary. Have you trained your eyes to look for things like head in a bag. Jumps right out. You should say who you are. Hank wallace. Yes. A great legal writing guru. It depends. Theres two kinds of cases. Theres the kind that you have to write immediately and there good words to look for are affirmed or reversed. My predecessors linda greenhouse, gave me some good advice. Start with the dissent. The dissent starts to tell you whats going on. If youre looking for a quote look at the beginning and the end of the opinion itself and various sections of the opinion. Yeah i think thats true. The ends of the sections seem to be where they sum up a little bit. Thats the place to look for a quote, if thats what youre doing. The other thing at the end of this term all three of us, four of us five of us who had to write right away stayed downstairs rather than going to the courtroom. But the good thing if you can go to the courtroom, is that you do hear a summary of the holding in the case, and so youve got that in your mind pretty clearly. You know how the case came out. You know the reasoning for it. And so then, as adam says, when you get downstairs you can quickly look at the dissent to see what the other side of the issue was. And so its very helpful if there is the time to go to the to go upstairs, let them explain it a little bit before you have to get down. But i do i do confess to people, i say if youve read my story online right after it happened, that doesnt mean ive read the opinion. It only means ive gotten enough that i can write this piece. Ill just say for myself, were downstairs, they pass out a copy of the opinion at 10 00 and say Justice Kennedy has our opinion and so and so. I take it first of all, check the votes because that really whether its 54 or a 90 opinion. And then check the syllabus for the main headings the main holdings. As adam said, you want to know affirmed or reversed. Check the dissent quickly to say this is a big decision or an outrage or whatever and then start looking with a yellow pad for some quotable lines. Usually at the beginning, sometimes at the end. At the same time, i like to listen to what in my example here Justice Kennedy is saying upstairs because that hepz. And reading it helps at the same time. Id like to think in about 60 seconds or 90 seconds ive sort of decided what i should go write. Sir . All right. So my question stems out of the earlier discussion with regard to Clarence Thomas comments on the solitary confinement case. I feel like the like whether a comment is inappropriate is whether you feel its inappropriate depends significantly on your familiarity with the legal issues and standards at play. And so my question is how do you deal with writing this in the journalistic viewpoint knowing that youre dealing with a wide range of familiarity with the law as well as knowing that these are certain things that people may latch onto. Anybody . You know im not sure that kind of aside is a legal point. Im not sure hes making a legal point. I think hes making a human point or a moral point or perhaps an inappropriate point or kind of a point that a talk show host might make. I dont know that it needs a lot of legal context for people to evaluate whether they agree with the point or not. The question again was about trends that you may see in the court with respect to like the courts revisiting the Voting Rights act, i think Justice Scalia wrote a dissent in which he would have thrown out the dormant calmers clause which goes back 200 years. So do you see any sense in the court about whether they weigh that more or less than they used to . The data seems to show that this court is no more activist than earlier courts across two dimensions that of overturning precedent and that of striking down legislation. Only a couple of times each term, and this term was no different. Let me ask a final question or two about the future. I saw on my email this morning that someone in billings, montana, had gone to a county clerk yesterday and filed for a sort of marriage license for his polygamist marriage relying on the decision. Is that issue going to be before the court in a couple years . Does Justice Kennedys opinion tell us how theyre going to rule on that . Bob . I dont think it did. Certainly the chief justice brought that up in his dissent. It went on about it to some length i thought. Will it be before them in a couple of years . I kind of doubt it. But i think that there will certainly be a lot going on in the lower courts about it. I think there is a polygamist marriage case thats pending that would come their way before obergafeld was decided. So i think we all believe that the next real round of this is going to be about religious exemptions and you know bakers and florists and what these state laws do that say that people dont have to perform some of these tasks that they dont want to, to aid in samesex marriages. It seems to me thats probably the next wave of things. You know, the thing that you see following the court over time is that these big changes in the law are a Long Time Coming and when only after theres been a big switch in Public Opinion, the two examples we talked about before was the notion of the right to bear arms back in the 70s. Warren Warren Berger made fun of that. And the whole notion that the Second Amendment wasnt about militias, it was about a right to bear arms. It became so much the publics understanding that by the time the Supreme Court finally took it up it wasnt a surprise for the first time they wrote yes, it does. As you know youve all lived through it the whole notion of gay marriage, it would have been a surprise and a shock in the 80s or the 90s, but by the time they finally did it, it was not like new news for us. It was sort of the accepted understood, not everybody agreed, but accepted. And thats why its always a mistake to say well the logic of this opinion means that. Well know ten years, 20 years from now what it means, but it will be a while before polygamy comes back i think. Famous last words. Famous last words right. On that note we have a 90minute window at cspan and were just a few seconds from it, so thank you all for coming and i hope to see you again next year. [ applause ] coming up in about an hour a discussion on the u. S. Patent system and ways to better protect innovators while allowing the u. S. Economy to compete globally. The center for strategic and International Studies here in washington is the host of that event and that will start at 1 00 p. M. Eastern on cspan 2. The hill reporting this morning president obama will make a rare visit to the pentagon today to be briefed on the fight against the Islamic State in iraq and syria. The president plans to meet with his National Security team and speak on the subject in the afternoon, according to the white house. Last month president obama announced that he would send an additional 450 military personnel to train and advise local fighters in an attempt to retake ramadi the capital of anbar, that fell to isis in may. That would bring the number of u. S. Troops in iraq to 3350. The Obama Administration is reportedly considering creating a network of bases around the country to help accelerate training of iraqi forces and sunni tribal fighters which has lagged in recent months. Again, well have live coverage of the statement by president obama on isis beginning just before 4 00 p. M. Eastern. Youll be able to watch it on cspan. Congress is back tomorrow from its fourth of july break. This week the house plans to continue and to finish up work on a bill to fund the interior department, the epa and other related agencies. Also on the house agenda a bill to make changes to no child left behind. Among them allowing states to set their own accountability standards. The senate is also back tomorrow working on a separate proposal dealing with no child left behind giving states more authorize on how to determine how much weight to give to standardized test scores. Live coverage of the house is on cspan. The senate on cspan 2 and here is more on whats in this weeks bills. The headline here in the u. S. News and world report, highway funding presents a new test of bipartisanship. Whats the deal with the highway funding . Why is it so important . Well thanks for having me. Youre right. Before the august recess they have to pass a highway transportation bill. This is something that both sides have indicated that there is bipartisan agreement on or the highway funding bill will run out. Now, whats going to complicate this is most expect there will be an amendment attached to extend the reauthorization of the export import bank. In the house theres been a lot of finangling on whether or not to finance the export import bank. Theres a controversial bill and controversial amendment attached. Tea Party Conservatives have raised concern about the export import bank. They say its a form of corporate welfare. Others say it helps sustain u. S. Jobs. So the export import bank, their authorization ran out as Congress Went to the july 4th recess . Absolutely. And so at this point the charter has temporarily expired. That means that the Bank Officials cannot vote to have more loans or projects. This is a bank that is federally backed. It is widely supported by the business community. The bank tends to make good on commitments that its already made and is funded through the appropriations process through september 30th. With that being said, this is one of the most contendtious things in the Republican Party and every major top tier president ial candidate in the republican field coming out against it while democrats support it and moderate republicans in Congress Also support it as well. Give us an idea of where Congress Stands on the annual spending bills. It seems like the house is about halfway through the annual 12. Whats left to do and how about the senate . Well, thats a great question and youre right. The house is once again out in front of the senate on this. The house has taken a much more piecemeal approach. The senate goes in more of a juxtaposed position. Were heading into the fall. I would not expect there to be major spending bills voted on before the august recess. Were heading into the fall and of course that comes right around the time of another debt limit. It also comes when we could see another fiscal cliff, the situation for the holidays. The fall and the winter around december and the holidays, its really going to be another example of whether or not congress can get something done in terms of a budget. Of course the background to this fight is that you have we saw this to some extent last year but i expect the ramifications to be a bit more heightened this year simply because were heading into another president ial cycle. And i think that the debt limit site kind of surrounding all of the budget fighting could heighten things. But it will be interesting to see how that plays out. It is too early to tell at this point. We talked about the highway bill. The usa today headline says congress to tackle highways and education. I understand that the no child left behind bill is coming up for debate in the senate. Whats that look like . Well youre right. The no child left behind obviously something from the bush administration. And again, its really tough to talk about these issues and not talk about whats happening on the president ial scale because when you talk about Something Like no child left behind and you have leading republican lawmakers in the senate like ted cruz, marco rubio, rand paul to some extend lindsey graham, all of these people are running for president so its going to bring up the debate of common core. And so, you know, i think on the flip side of that democrats have also attached no child left behind and so its were going to have an education today. And i wouldnt really expect the president to try to pass any type of comprehensive education reform. I dont think that thats really on the agenda. I dont think that theres the Political Capital to do it. But well have to wait and see. Again, i think that the country is about to have a National Debate on common core and this will just be the first instance of that in the coming days. Lastly at the hill this morning with a story 14 democrats to watch on iran nuclear negotiation, Nuclear Bargain as the negotiations face a deadline tomorrow. How might a decision in geneva, a decision on that treaty be played out on the floor particularly of the senate . Well thats a great question and i think that youre were going to see the battle political battle lines redrawn simply because republicans have continued, as you know to raise questions about whether or not president obama has been able to get the best deal from the iran sanctions. And to some extent people within the president s own party have questioned that as well and have asked for a final say regarding his negotiations with iran. I think tomorrow its an opportunity for republicans to continue to criticize president obamas Foreign Policy and i would expect that to be heightened tomorrow. But the republicans have consistently called for the president to be more more tough, for lack of a better term, with those negotiations with iran and that will continue on the floor tomorrow. Follow kevin cirillis reporting at the hill. Com. We appreciate you joining us for that congressional preview this morning. Thanks, have a good one. And a reminder that you can follow congress on the cspan networks and our websites cspan. Org. Live coverage of the house on cspan starts tomorrow at 2 00 p. M. Eastern and the senate is on cspan 2 beginning at 2 30. Coming up next a hearing on the procurement of nonv. A. Health Care Services for former soldiers who usually receive services from v. A. Facilities. A federal oversight official and army veteran who experienced troubles with contracted care are among those testifying. Good afternoon. This hearing will come to order. I want to welcome everyone to todays hearing titled circumvention of contracts in the provision of nonv. A. Health care. This hearing is the second in a series of hearings examining illegal v. A. Procurement practices resulting in massive wastes of limited taxpayer resources in serious jeopardy to the quality of health care received by our nations veterans. In our previous hearings we focused on the mismanagement and misuse of purchase cards and avoidance of contract requirements, spending limitations and warrant authority. A v. A. Senior procurement executive, mr. Jan frye, testified that these unauthorized commitments were in the billions of dollars. Mr. Frye has indicated similar levels of mismanagement and abuse in the procurement of nonv. A. Health Care Services by vha. By far the most prevalent method by which veterans receive nonv. A. Care is through the individual authorization socalled fee basis process. Under title 38 of the code of federal regulations section 17. 52, the v. A. Is authorized to obtain nonv. A. Medical services when demand is infrequent and the needed health care is not available inhouse or through an existing contract. Unfortunately v. A. Uses this process even when these requirements are not at issue. Moreover, v. A. Admits that the execution of these authorizations does not comply with the contract requirements of the federal acquisition regulation, or f. A. R. And Veterans Affair acquisition vaar. Mr. Fry will testify that by long standing and massive circumvention of the f. A. R. And vaar in the fee basis authorization process v. A. Has illegally obligated billions of dollars. He well explained that v. A. Incurs billions in improper payments that represent material weaknesses in v. A. Internal audit controls significantly. In 2009 and 2010 the oig reported on Serious Problems with the accuracy and efficiency of claims paid through the fee basis program. The oig reported that v. A. Medical centers made hundreds of millions of dollars in improper payments including duplicate payments and incorrect amounts. Most troubling is that vha had not established Fraud Prevention or detection controls because it didnt consider the program to be at significant risk. Oig estimated that v. A. Could be paying as much as 380 million annually for fraudulent claims. And in may 2014 contrary to v. A. s assertion that previous illegal purchases can be institutionally ratified, oig reported that v. A. Further violated the law by institutionally ratifying illegal purchases and avoiding important checks and balances. Today, gao director of health care, randall williamson, will testify about the continuing limitations and oversight of Health Care Service contracts and will focus particularly on the inadequate management of clinicians who provide services under contract with v. A. Facilities. We will also hear from United States army veteran christopher labonte, whose horrific experience with v. A. Represents a case study in the risks associated with noncompetitive contracts, with affiliates and the importance of Quality Control and oversight of contract performance standards. As i said in the purchase card hearing, violations of procurement laws are not mere technicalities. It is not just a matter of paying a little more for needed supplies and services as some spol apologists for v. A. Have asserted. Among other things without competition businesses may be awarded based on business may be awarded based on cronyism and the directing of business to favored vendors including those who may be employees or former v. A. Officials. Without contracts Patient Safety provisions are not legal requirements. V. A. s mismanagement of the fee basis program is not a justification to dispense with f. A. R. Or vaar requirements. If the atom bomb can be built and wars conducted under the acquisition regulations surely v. A. Can deliver patient care under them as well. With that i now yield to Ranking Member custer for any opening remarks she may have. Thank you, mr. Chairman. This afternoons hearing is a followup to our hearing four 2 weeks ago. Today our focus will be on the legal basis of v. A. s purchase and the practice of v. A. In obtaining this care. At the end of the day, we can all agree we want to see our veterans receive the health care they need at precisely the moment they need it. But i want to make clear that neither i nor my colleagues view this laudable intent as a blanket rationale for not following laws, regulations or proper procedure. Federal and v. A. Acquisition regulations exist for a reason. They exist to ensure that theres proper competition when appropriate and that the best practice and price is possible is obtained when the government purchases goods and services. For the v. A. These laws protect veterans, save taxpayer dollars and ensure our veterans receive the highest possible quality of care. V. A. States in its testimony thats had a 30year practice of using individual authorizations without applying federal acquisition processes and procedures. At the same time it seems that the v. A. Has taken the position that individual authorizations are indeed contracts and should be viewed as such. Even with acknowledging when v. A. Officials appear to have acted in a manner inconsistent with procurement law. Now v. A. Is arguing that it needs new statutory authority, quote, to resolve what has emerged as serious legal questions to its purchased care authorities. This new authority would explicitly exempt v. A. From procurement regulations and requirements and allow the v. A. To continue with the same practices that it has been following for the past 30 years. I personally am not convinced that this is the best solution given v. A. s significant lack of oversight in this area. In fact, i would argue that the problem is not that the legal questions have arisen over v. A. s Purchase Care Program but that for too long v. A. Has operated a program where the legal basis has been challenged and yet v. A. Has never changed course or modified its procedures. V. A. s authority to purchase care without having a contract in place is predicated on individual authorizations being used, quote, when demand is only for infrequent use, period, close quote. Id be interested in finding out how much of the 7 billion expenditure for nonv. A. Care in fy2014 has been obligated under this authority as compared to situations where contracts are in place. As we examine the current Legal Authority for v. A. s Purchase Care Program and whether this authority must be modified, we must first get to the bottom of how this program has been operated over the last number of years. Its absolutely critical that we understand how v. A. s legal interpretations change and were communicated and enforced. Its hard to expect accountability when there are no clear signs pointing out the way. The testimony of mr. Frye and the various legal arguments made by the v. A. Litigation makes it seem unlikely that over the last number of years clear policies and procedures were in place. Gaos testimony points out, quote, significant weaknesses in v. A. Monitoring and oversight of its nonv. A. Medical care program. Perhaps it is now time to stop applying quick bandaids and resolve right now to fix what is wrong. It took years for v. A. To get into this problem. And it will take time to fix it. But the first step in addressing the problem is to acknowledge these problems and quickly and forthrightly come up with a concrete plan to fix them. Finally, id like to thank mr. Labonte for appearing before us today to relate his story, which is absolutely horrendous. Mr. Labonte reminds us that the bottom line is the quality of care for our veterans. This quality can certainly be impacted by lack of accountability and process when it comes to making sure that all relevant laws regulations, and policies are followed. And with that, mr. Chair, i yield back the balance of my time. Thank you, Ranking Member custer. I ask all members waive their opening remarks as per this committees custom. With that we have the first and only panel at the witness table. On the panel we have mr. Edward murray, acting assistant secretary for management and interim chief Financial Officer of v. A. Office of management. Mr. Gregg giddins principal executive director of v. A. s officer of acquisition, logistics and construction. Mr. Norbert doyle, chief procurement and veterans officer of the Veterans Health administration. Miss philipa aroundson, assistant general counsel for government contracts of v. A. s office of general counsel. Mr. Jan frye Deputy Assistant secretary for the office of acquisitions and logistics. Mr. Randall williamson, director of gaos health care team. And mr. Christopher labonte, United States army veteran. I ask the witnesses to please stand and raise your right hand. Do you solemnly swear under penalty of perjury that the testimony you are about to provide is the truth, whole truth and nothing but the truth . [ response ] thank you, please be seated. Mr. Murray, you are now recognized for five minutes. Good afternoon, chairman coffman, Ranking Member custer and members of the committee. Thank you for the opportunity to discuss the department of Veterans Affairs by contracting with community providers. The subject involves some complex territory regard procurement process, legal interpretations and the processing of hundreds of thousands of purchase care transactions per year. I know we will be discussing these areas in detail and that the committees oversight is important. They will always depends on a mix of inhouse and Community Care with care in the community continuing to grow to ensure veterans get the care they need in atimely way as close to home as possible. So while the discussion here may be technical, were discussing transactions that represent the purchase of health care for a veteran who needs it. When purchasing care in the community, v. A. Depends on both federal acquisition based contracts and nonf. A. R. Compliant agreements, also referred to as individual authorization. These agreements are used in many situations because a provider may have a relatively small number of veterans referred by v. A. As part of their total patient mix. For those providers it may not make business sense for them to enter into a f. A. R. Based contract to provide car. This is especially true in rural areas. Although these agreements are not f. A. R. Compliant v. A. Utilizes internal controls to ensure that care is obtained from a qualified provider and the services billed are consistent with v. A. Relgulation before a claim is paid. These practices safeguard veterans to protect taxpayer dollars. The v. A. Use of Community Care has risen dramatically. In fiscal year 2006 it was roughly 2 spoib 7 million. For fy2015 we estimate 10. 4 billion. Over those years the different authorities for purchase care have not been applied consistently and have been marked by conflicting interpretations. With the determination by the department of justice that individual authorizations are contracts and, therefore, must be f. A. R. Compliant the v. A. Began reviewing its internal processes working towards development of a plan to improve integration, transparency and oversight of all purchased care. We have recognized these problems and proposed a solution. Last year an informal discussions with committee staff, v. A. Noted issues that would need to be addressed by statute. In februarys budget submission we noted the department would be putting forward a legislative proposal. On may 1st we provided a formal proposal for comprehensive reform including very specific requirements for nonf. A. R. Based agreements. The legislation would authorize the secretary to enter into veteran care agreements when f. A. R. Based contracts are not practical, with payment rates tied to medicare rates. Similar to Community Care purchased throughout the veterans choice program. The legislation recognized that f. A. R. Based contracts should be used when they can but also will utilize nonf. A. R. Based agreements. Every two years they would review nonfar based agreements and evaluate whether nonfar bases contracts are appropriate. I believe youll find this provides strong protection for veterans and taxpayers. Mr. Chairman, we look forward to answering committees questions. Thank you, mr. Murray. Mr. Frye, you are recognized for five minutes. Chairman kaufman, Ranking Member custer and members of the subcommittee, thank you for inviting me to testify today. You just heard mr. Murray provide the departments position on the illegal purchases of billions of dollars of nonv. A. Care. If youre not confused, i would be surprised. I would be completely confused if i were not familiar with the facts. We obviously do not intend to admit our collective failures in leadership and stewardship of public funds. Mr. Murray stated there was and is confusion inconsistent application and conflicting interpretations. As v. A. Senior leaders we have had many years to correct these deficiencies. Mr. Murray also stated there were conflicting interpretations of the law. Heres some facts that may help you decide if conflicting interpretations exist. In october, 2012 a very senior vh official informed me trouble was looming as they had been violating law on a wholesale basis with regards to purchase of nonv. A. Care. I asked for details about legal documents he hinted of. He declined to reveal anything. On october 22nd 2012, i began a personal inquiry into the matter. I sent this same official and his subordinate a written statement addressing his plight, hoping i would receive Additional Information from him. He declined to respond. On december 3rd 2012, i sent a note requesting a legal opinion as to whether individuals authorization for nonv. A. Care were considered f. A. R. Based contracts. I received no response. I followed up again for a third time january 15th 2013. On february 28, 2013, nearly three months after i requested the initial opinion the office of general counsel provided me a legal opinion dated september 10th 2009. This opinion categorically declares procurements of nonv. A. Fee bases care to be f. A. R. Based. There is no conclusion in this legal opinion in spite of what youve just heard from the contrary. Neither my predecessors nor myself have ever granted authority to acquire nonv. A. Health care except by f. A. R. Based methods. You may wonder why i had never previously seen this legal opinion and why there was such obvious reluctance to provide it to me. That is an enigma. Mr. Murray and myself testified under oath to this subcommittee in 2010 stating fee basis care was not f. A. R. Based. If this legal opinion existed in 2009, why was it kept from us in preparation for the hearing . Given the apparent recalcitrance engaged i submitted a hotline complaint to the office of Inspector General in march, 2013. The oig initially refused my submission, questioning my motive for submitting the complaint. I stubbornly persevered and they subsequently accepted it. I am unaware oig ever investigated. In april 2013, i requested Senior Leadership assistance from vha and the office of general counsel conducting ratification actions for these massive violations of federal law. I received no offer of assistance from either office. In may, 2013 secretary shinseki was briefed. He was made aware of our illegal actions. I was not invited to the meeting. In june 2013, i wrote a letter to representative issa, then serving as chairman of the House Oversight and Government Reform Committee outlining my concerns on these illegal matters and others. My letter was never my letter never made it to him. Two senior officials who are apparent friends, one from the House Oversight committee and one from vha conspired to keep chairman issa and the American Public from learning of these matters and other violations of federal laws. In april 2014 the v. A. Senior Assessment Team voted to close ongoing discussions of it legal purchases of nonv. A. Medical care with mine as the lone opposing note. A motion passed to raise the reporting level for v. A. Material weaknesses from approximately 400 million to 1 billion. I believe this was an effort to avoid reporting illegal matters. From july to november 2014 be developed a legally sufficient method to acquire nonv. A. Health care. Senior leadership rejected the method in november 2014. The illegal activity continues unabated. This past friday deputy secretary gibson elected to make my disclosure of these and other illegal acts a personal issue with me. His demeanor and actions in both an open and oneonone meeting were clearly meant to intimidate me and to cast a chill over me and others who might be tempted to report violations in the future. I will allow you and the court of Public Opinion to decide for yourselves if what i briefly described constitutes corruption, malfeasance or dereliction. No investigation has been conducted. No rat fixes of illegal procurements have been executed. Improper payments continue. Veterans receive Health Care Without protection of mandatory terms and condition and no one is liable. I believe these are two relevant questions. How can we hold subordinate v. A. Employees accountable if we as Senior Leaders selectively pick and choose the laws we want to observe for sake of convenience . When will the v. A. Senior leaders be held accountable . There were more than a dozen of v. A. s most Senior Leaders in the july 11, 2014 meeting. The issue of illegality was positively affirmed. Not a single leader save one subsequently acted to protect the governments interest on resources. We have lost our way. Senior leaders are required to obey and enforce federal loss. Our actions and inactions do not fit anything i have previously experienced in over 40 years as a military officer and civilian public servant. Mr. Chairman, this concludes my statement. Im prepared to answer all questions the subcommittee may have for me. Thank you mr. Frye. Mr. Williamson, you are now recognized for five minutes. Thank you. Im pleased to be here today to discuss our work on v. A. s programs for delivering care through nonv. A. Providers. They treat veterans in Community Hospitals and doctors offices using either a fee for Service Arrangement or a prearranged Provider Network. Nonv. A. Providers also renter care in v. A. Facilities under a contract arrangement or affiliation agreements with University Medical schools. In fiscal year 2013 v. A. Spent almost 5 billion for nonv. A. Providers of medical care for more than one million veterans. As more veterans seek care outside of the v. A. System it is important to make sure that v. A. Care is of the highest qualities, and it is reliable, accessible and sufficient. Three recent reports acknowledged weakness of the nonv. A. Medical care program and today i will focus on the issue v. A. Needs to resolve in this area. In may of 2013, gao reported that v. A. Does not collect data on wait time for veterans referred to nonv. A. Providers. There are cannot assure that veterans are receiving access to medical care that is compable to veterans receiving care at vamcss. They also do not have systems capable of collecting data for all services and charges tied to a specific episode of care during inpatient stays and as a result it does not now how much it is paying for care. In october of 2013, we reported on weaknesses in v. A. s process for account kraing with nonv. A. Providers to provide care at v. A. Facilities and specialties that are difficult to recruit that supplement v. A. Clinicians in high volume areas or fill critical staffing vacancies. Specifically we found that contracting officer representatives at vamcs who monitor contract performance on a variety of contracts for goods and Services Including clinical contracts, had heavy workloads and lacked training on how to gauge and post award monitoring of clinical contractors which compromise diligent oversight of nonv. A. Providers. Robust v. A. Oversight is essential to ensure that nonv. A. Providers deliver high quality care and fulfill the responsibilities of their contracts. Finally, in march 2014 we reported serious weaknesses in the way v. A. Was administering and overseeing its program for reimbursing nonv. A. Providers for Emergency Services for nonserviceconnected veterans. In processing and reimbursing claims in nonv. A. Providers, we found patterns of v. A. Noncompliance with its own processing requirements attributed largely to poor oversight at both the local and national levels. Therefore, some veterans were likely billed for care that v. A. Should have paid for and many were not informed that v. A. Had rejected their claims for reimbursement for care from nonv. A. Providers. As a result, many may have been denied their appeal rights. While v. A. Has made progress in addressing recommendations we made in these three reports, only about onethird of them have been fully implemented. Moving forward as new components are added to v. A. s nonv. A. Medical care program such as patient centered Community Care referred to as pc3 and provisions of the choice act it is anticipated the number of veterans seeking medical care through nonv. A. Providers will continue to grow. It is vital that v. A. Establish robust oversight and accountability in its nonv. A. Medical care program, such that relevant v. A. Staff at every level understand the importance of and are held accountable ensuring veterans receive high quality, accessible and Cost Effective care from nonproviders. This concludes my opening remarks. Thank you, mr. Williamson. Mr. Labonte first of all, thank you so much for your service to the United States army. And you are now recognized for five minutes. Thank you for giving me the opportunity to speak to this committee today. Im Christopher Kevin labonte and i had upper value surgery on august 13th in the atlantic surgery Medical Center. Ive providing a written statement that explains in detail the events. I was coerced in a highly Invasive Surgery chchz performed by a student with no qualifications or educational background to even be presenting in the room, let alone being in the residency program. I have submitted evidence to prove this statement. The atlanta v. A. Medical center has also been negligent in my health care. They have been complicit in allowing unqualified personnel to gain entry into the v. A. Medical center and also providing some of the Worst Health Care i have ever experienced. I have also submitted an index of medical evidence along with my written statement proving the willful negligence from not only the medical doctors but the administration and their corruption. On the day of my surgery the atlanta v. A. Medical center changed the consent for surgery paperwork to allow a student from kuwait to be the primary surgeon performing my surgery. I have no recollection of signing this document as medication was already administratored for anxiety presurgery by the doctors. Not only were bone shards left in my mouth, but he cut a nerve. As a result of this surgery, i now have a medical condition from damaged branches of my nerve. Also known as suicide disease is described as one of the most painful medical conditions known to man. The v. A. Surgical report admits to cutting this nerve in the surgery. According to the doctors social media pages he has devout islamic views. I was deployed to kuwait at the same time that he was attending the university of kuwait. It is no secret that many people from this region and religion wanted to harm u. S. Soldiers. My question to the v. A. Is why was he allowed to operate on combat vets who he would have had diffley treating objectively or even had ill intentions towards. The Medical Center should be sensitive to the needs for veterans to feel comfortable and safe with their doctors. The Medical Center should be more sensitive than any other facility. As a combat veteran i should have been given the choice to have him involved with my care on any level especially performing a highly dangerous surgical procedure that required me to be unconscious for an extended period of time. I wake up every day in chronic pain. If you can imagine the worst tooth pain you ever felt, that is how all the teeth feel constantly. I have to take muscle relaxers three times a day for the facial pain and muscle spasms. I take narcotics four times a day for the muscle pain and nerve pain. I take anxiety medication to keep my facial muscles from tensing and compressing my nerves which not only cause pain but severe migraines. These migraines feel like someone is kicking me in the skull. My diet is limited to soft foods that do not require much chewing. According to my current team of nonv. A. Doctors i will not only need continual medical care but will have to wear plot thet ix in my mouth the rest of my life and require Pain Management for the rest of my life. I am extremely disappointed in the v. A. Health care system. The priorities seem to be one profit, two, hospital reputation, three, protecting high level bureaucrats, four, protecting negligent doctors five, cutting costs at the expense of veteran health care and finally six, veteran health care. I prefer to it as death care as health is barely taken into account. From my experience the motto should read delay, deny and hope you die. Thank you, mr. Labonte. The written statements of those who just provided oral testimony will be entered into the hearing testimony. We will now proceed to questioning. Mr. Labonte, how long have you been waiting for v. A. And or em reto address the situation created bite surgery . Since august 16th of 2013. Okay. So nearly two years. Nearly two years. It will be two years this august. Okay. Mr. Murray, in the september 2011 fha fee care Program White Paper it was recommended v. A. Conduct a cost benefit analysis of contracting out the process of claims as with other payer models, like tricare, Medicare Medicaid blue cross blue shield, et cetera, and their applicability for v. A. What was the rest of the cost benefit analysis . Thank you for your question. Im not aware of that being conducted. But i believe ill ask my vha head of contracting activity if he is aware of that analysis. Sir, im not aware of that analysis. Mr. Frye, any comment . Im not aware i cant give you an answer on that. Okay. Mr. Frye, v. A. Secretary mcdonald was publicly critical of you after the last hearing conducted by this subcommittee on may 14, 2014. The secretary is this 2015 . Yes, sir. Im sorry, may 14, 2015. The secretary stated that he was aware of the problems and characterized your memo as, quote, just showing what he, meaning mr. Frye, needs to improve, unquote. He further stated, it is your, quote, responsibility to fix it, unquote. What is your response to secretary mcdonalds statement . Well, i think all of us make comments sometimes and then wish we could retract them. Im not sure mr. Mcdonald had read my 35 page statement to him at that point. Since that time, mr. Mcdonald secretary mcdonald came to see me last week and he expressed appreciation for me raising these issues. In answer to your question specifically, i dont run contracting. Im responsible for overall policy in the v. A. And i have one of six heads of contract activity that does report to me but i do not run contracting for v. A. I think anyone who reads the document i provided to the secretary will see that ive struggled in trying to right the ship and i certainly was asking for assistance from he and the deputy secretary given that i have been unable to on my own to fix what was wrong. So again, i make comments again that i wish i could withdraw and perhaps he does as well but i sincerely believe at this point that the secretary appreciates and is probably more angry than i am at seeing this waste given that he is trying to move us forward and every time we move forward one step, and this malfeasance is uncovered, we move backward 12. I hope youre right, that he is upset. Mr. Williamson, your testimony states that the v. A. Didnt collect data on wait times from nonv. A. Providers leaving the department unable to analyze Critical Data and did not provide critical oversight and monitoring of related claims or even the performance of the services provided. Gao made 22 recommendations to address v. A. Shortfalls but how is the Department Addressing them at this time . On all 22 . I could provide all of that for the record, but i will say that they have made progress. It is not like they are ignoring us. They are meeting with us, they are making progress. But to consider a recommendation from our perspective, we require some rigorous documentation and v. A. Hasnt provided that documentation as of now on many of those. Okay. Thank you, mr. Williams. Ranking member custer. Thank you, mr. Chairman. I have a question at the top just to get to the bottom of the issue as to what legal authorities provide the basis of the purchase of nonv. A. Care and so im asking our representatives from the v. A. To provide the following documents. The 2008 guidance from the chief acquisition officer and office of general counsel that nonv. A. Care was not governed by f. A. R. I think that was the original 2008. And then the may 2013 white paper provided to secretary shinseki on nonv. A. Care authority options. And then finally, and i dont have a date for this, but i think from the testimony it is 2014, the department of justice ruling that referenced that v. A. Must consider all feebased care actions as being f. A. R. Based. So i want to im interested in going back but i also want to try to go forward, where we go from here. I think whenever we talk about health care, were talking about sort of a triangle of access, quality and cost. And it seems to me part of the problem that we have in terms of Public Policy Going Forward is the sheer scope of this problem. Because part of what the choice act, it entails, is to bring in private Sector Network coordination through triwest and health net. Essentially that is what were talking about here. I mean it is massive in scope to have individual contracts and my district is a rural district in new hampshire, i know about these contracts and i know about these authorizations. Could you comment and well start with mr. Murray, but i would be interested, mr. Williamson with your knowledge of reviewing this, if you have, even if its an opinion at this point, do you think that we can get out of this morase by simply changing the rules of contracting or do you think that we should try to bring in the authorizations and even the f. A. R. Based contracts into these private Sector Networks . And ill just put it set it up to mr. Murray, if you would. So the choice act does have triwest and health net as the two what we call thirdparty administrators. And as you know, we have not got off to the start the quickest start with those programs as we would like. Rest assured that the all leadership, the deputy secretary, are doing our utmost to exercise those programs to the maximum ability, extent to get care to those veterans that urgently need it, that have earned it, that deserve it. The Model Looks Like i go to the access meetings every morning. Many of the members of this committee have been invited to the morning access meetings. We believe it will be an effective model for providing care in the community to our veterans. Can you envision a time in the future where the networks will be sufficiently extensive where you would have dealt with the cost issue whether it is medicare reimbursement rates, whether you would have the quality issue addressed via the oversight by these thirdparty administrators. Can you envision a time where we wouldnt need to have these oneoff individual contracts . I will defer that question in a moment to the acquisition folks and the vha gentleman here norm doyle but it is about signing up, building the network, having those providers in the network the right type of providers in the network in certain geographical areas of the country. We see this in the morning through our meetings with the dep sec and Senior Leadership in the Health Administration that its all about ensuring that you have the right clinical care, right physicians in the right parts is there an attempt to get the physicians that youre already dealing with through these individual authorization . Is there an attempt to get those physicians into these networks . Absolutely absolutely. So Health Administration leadership, if dr. Tushman was here, the options theyre exercising, reaching out to current Provider Network and getting them signed up or encouraging them to get signed up for choice through triwester or healthnet. All hands on deck, everybody moving full board to do that. Well have to come back to mr. Williamson on another round. My time is up, but, thank you. Doctor five minutes. Thank you, mr. Kaufman. I thank you all for being here this afternoon. I think to me, what ive learned from this is that its not as easy to get health care in the private sector for the va as one might think. I think the tricare model is interesting, but they pay tricare, the medicare rate and then tricare pairs the actual providers less than the medicare rate. In my district nobody really wants to sign up for any of this stuff because it doesnt pay very well. And its been you know, problematic. Some of the choice people offer choice, but theres no providers that will do choice, because theyre actually getting paid less than medicare rates, because they pay triwest medicare rates, but triwest doesnt pay the actual people in the that are producering the care those rates and to get those numbers its been tough for me to figure that out. My concern more is about, for today a little bit is about this apparently legal activity illegal activity thats been happening. Im just wondering let me ask mr. Doyle. Are you aware that some of these things were illegal, mr. Doyle . I mean, thats what mr. Frye seems to is telling us. That all of these purchases are illegal and then theres you have a legal opinion this is not the way it should be done from a long time ago, which you didnt know that was the case . Youre sort of in charge of procurement of outside care. Right . Yes, sir. As the cheer procurement logistics officer we do, do contracts for nonva. Is your opinion different than that of mr. Frye, that this is not illegal . Whats going on . No, sir. Im not a lawyer or a judge but refer to Legal Counsel and i dont believe they would say its illegal what were doing. Theres a difference between what you believe and what mr. Frye believes. Is that right, mr. Fry . Is there a basic difference here . Am i talking about two Different Things . Its a little confusing to me counsel will tell you these arent illegal, theyre improper improper. Illegal to go through a stop sign in my neighborhood but improper to spend billions outside the law in the va. It makes no sense. This is the same argument counsel, the same species argument counsel yugszed several years ago when there was an argument in these chambers about the buying of pharmaceuticals without contracts and at that time the deputy secretary was here at the table, and he, in his oral statement, was about to make the statement that it was improper not illegal. This body absolutely confirmed it was illegal. If were going to the Supreme Court, court of law, id love the argument made these are improper not illegal but this is the court of Public Opinion. The court of Public Opinion. Not a court of law. Let me isnt fee for Service Providing different than contract . I mean, im a prior physician. I worked at the va 20 years, and i was a fee for service physician. So i didnt have a contract. I agreed to a fee, and frankly i wanted to do a contract but it was so difficult to get the contract, it would take months, mother than a year more than a year get the contract negotiated and completed. Couldnt get it done and preferred to do it fee for service because they could get that done right away, i dont know exactly the details, but im sorry to hear you werent on contract. Sounds like an unauthorized commitment. Im not familiar with the methodology that they used to bring you on, but if we require to have a contract, we are required to have a contract. All right. Well, lem go to a different thing. Mr. Lebonte let me ask you a question about your care. You said that you dont think you signed a consent form before you had narcotics, or some sedatives . Oh, i signed a consent form after administered an aesthetic before the surgery. Had me sign a digital pad. No a consent form. Never saw paperwork. I dont recall signing it but apparently i scribbled on an electronic pad under anesthesia to give the resident, the primary surgeon slot during my surgery instead of martin steed, the surgeon that was supposed to conduct the surgery. To me that sounds illegal but im not its highly unusual in my experience anyone where i come from nobodys allowed to sign a consent after they had any drugs. Im just usually witness pd by somebody. I imagine you have all of these documents. Are you doing a lawsuit in reference to all of this stuff . A court claim is pending. Also unusual is that ib bree im is the only one with a bachelors instead of a doctorate. Lots of things unusual at the va center. Maybe that needs a little more work, than weve seen here today, mr. Chairman. Im on a time. Thank you. Thank you doctor. Mr. York youre recognized for five minutes. Thank you mr. Chairman. Ms. Anderson, ill ask you, because mr. Fire earlier summarized what they thought your response would be to the question. Was this or was this not legal . Not to put too fine a point, this, these were not illegal actions, or illegal activities. Yes, they were not far compliant, an illegal contract, and im speaking as lawyer, an illegal action or illegal activity, its not enforceable. These these commitments are enforceable. In fact the federal acquisition regulations acknowledge understands, that that that there are times when officials not authorized to commit the government, they do commit the government and there is a formal ratification process. The courts and the boards have recognized that when the government makes a commitment pays receives services that the government cant hide behind the fact that you didnt follow the far. The government received a benefit, and there is a legal theory for recovery on that. So i i respectfully disagree with mr. Fryes position that these are illegal contracts. It sounds like i may or may not be following the distinction. It sounds like this is a a an obligation by which the va is legally bound to fulfill. Does someone at the va do anything illegal in committing the va to this obligation . If were addressing the fact that a person not committing not authorized to perform enter into a contract, the answer is there was no illegal activity. Okay. And then so for mr. Murray, to followup, if this was not illegal, was this improper . Thank you for your question. Its prop proper is an interesting question, because if you establish the obligation the provider provided the service, the provider billed correctly, and the provider was paid one would argue that it was proper but not far compliant. Should the obligation have been entered into in the first place . Was that proper . It so thank you again for your question. So was it proper . If it was so proper im struggling with the word proper. Id like to address that. Yes. And this is going efieldafield on the appropriations, the appropriation area. So just if if funds are available, one, we have the authority to contract. Done improperly but we do have the authority to contract for these services. Funds are available, then they are proper. The payments are proper. From an appropriations, and authorities. So let me ask this followup question, mr. Murray. Have these actions, obligations, been ratified . In other words, blessed by the va . Im trying were all concerned about what happened here and want to know the basic question of whether youre concerned and this think was appropriate or not. So the as we know, the office of Inspector General recently reviewed unauthorized commitments, and the purchase card program. For those that were identified to the oig we did 100 wee viewreview of that sample and referred those to the head of contracting activity for review and ratification if appropriate. So thats where those are. Now, those were, with respect to purchase Card Transactions above the micro purchase threshold. So if they were identified as being, we didnt have the authority, the va acquisition regulations, go to 10k, right . Mr. Frye will tell you about that. If they were above the 10,000 authorization for fee care