Transcripts For CSPAN C-SPAN Weekend 20100425

remember every day, just how important our young people are and how curious it and ready to do anything you all are. that is fun. all right, we in the back. the red hair. -- weight in the back. right here. >> can do anything to make recess longer? >> to make recess longer? [laughter] ok. caller[cheers] long recess? can i make recess longer? i see "no" over there? we want to make sure that all kids have recess. there are some kids in some schools, some places don't have recess. we want to change that. because during the day, you tell me, doesn't it feel better to get through the day when you get a break and run around a little bit, get some of that energy out, throw a ball, sweat a little bit? doesn't that help you learn? i believe it helps kids learn. the first thing is we need to make sure that every kid has an opportunity to have recess in their schools and to get exercise and to have p.e. and play sports. once all kids have it, then the question becomes whether it is longer or whether you need to know math. i know, there is the school aspect, but it is a good balance so that kids are getting a little bit of everything. does that make sense? all right, sounds good. ok, the lady next to allen, in the white. >> the movie business. >> is the move it business working well? we just started that initiative and we are pleased with the response. everybody that we have come across is excited about the possibility that we could make sure that kids are healthier. i have not run into anyone who does not think it is a good idea, because it is all about you all. so far, so good, but we have a lot of work to do, and we won't know how we're doing for a while. we will see it in you all. we will check back again next year, and knickknacks -- asked me that question again. ok? you, young lady. yes, you. yes, you. find the microphone. >> do malia and sasha still hang out with their friends in chicago? >> they do, as much as possible. sometimes on vacation, sometimes for offense. -- sometimes events. but they have made new friends here, good friends, but their old friends are still people that have known all their lives. you know old friends that you have had since you are 3, right? there is nothing like those friends. they have been lucky to be able to keep those connections. our right, let's see. -- all right, let's see. the first, the tie dyed pink. >> the you help your girls with their homework? >> yes, every night. well, malia is older, so she does her homework on her own. she is very independent. i don't helper, and she does not want my help, quite frankly. sasha is still a little bit younger. yes, third grade. when she needs help, help her, but usually check, to make sure. i try not to redo it, but i check and ask her if she can change things if they're wrong. our right. how about you, young man. >> how long have you had bo? >> a little over a year. press? i saw a story on his anniversary? it has been a little over a year. he will be 2 in october. his birthday is october. but dogs grow fast. one-year-old dogs are not baby puppies anymore. he is a big breed dog. that is about as big as he is going to get. now he is sort of like a teenager. he is not a baby puppy anymore. yes, dogs have shorter life spans. their life moves a little faster. he is more like a teenager now. if the dog is 10 years old, that is an old dog, like a grandma, exactly. " that does not offend anyone, but, that is about where they are in their lives. ok, you, young lady, in the glasses, second row. >> the use still communicate with your friends in chicago? -- the use still communicate with your friends in chicago? >> yes, we do. we try to connect as much as possible. that is been a fun thing for me, too. all right. we're going to be able to do a couple more questions. if you asked a question, make sure that your hand is down. make sure that you ask a question that has not been asked before, all right? these are all brand new questions? ok. yes, definitely. intercoms the mike. i will do it one in each section. one here, one here, one here. does that sound fair? and you can talk amongst yourselves and figure out who the question needs to be. yes? >> i have two. what is bo's favorite toy? >> his favorite toy is a bigot rope. he likes to drop at your feet. -- it is a big rope. he likes to drop at your feet, wait for you to get it. he played tug-of-war, and he tries to win. he wins if he plays against sasha. usually i win, because i am bitter. >> -- i am bigger. >> how early do they have to get up? >> they get up at 6:00 a.m. they could get up later if they move faster. [laughter] but that is their choice. you move slow, you get up earlier. ok, this section, in the black. >> oh, yeah. >> take your time. am i just remembered. -- >> i just remembered. when did you start the let's move. >> that is a question i answered before, but i want to make sure all kids are healthy and it is important to make sure kids start out early with good habits. if you start out early with good habits, you grow up with good habits, and and we have a healthier nation. if we have healthier kids, we of healthier parents and a raise healthier kids. all right, one more in this section. alright, you on the end. yes? >> what activities are you and your family interested in the most? >> activities like sports and things? we all like different things. some like soccer, some tennis, some basketball. everybody likes to watch movies. everybody likes to travel. everybody gets excited when there is a big trip. we like to travel together. usually, we don't care where we go. it is usually fun and interesting. those are some of the things we like to do. i know. all right, who has the question here? all right, we're gone to the back. i have done a lot in the front. the young lady with the multicolored stripes. >> what are your responsibilities as first lady and did they change as president obama goes out of town? >> that is a good question. the first lady technically does not have a job description. that is something that has been debated. whether the first lady should get paid, whether it there should be a more defined job description. right now, every first lady describes -- defies their job based on their interests and passions. some promote reading and literacy. some people promote saying no to drugs. hillary clinton promoted work with children and work abroad, a lot of the international focus. it really changes from first lady to first lady. . >> the young lady in the red. you have a lot of people pointing at you. >> what after-school activities to the girls a do? -- girls do? >> piano. practice for sports. sasha does hip-hop dance.' melia does flute. i am sure i'm missing something. that is the array. the sports chains by season. sasha-- the sports change by season. sasha's basketball. i will probably have them do basket -- i will probably have them do it swimmiswimming. we are done. i have to go do the rest of what items posted do as first lady -- of what i am supposed to do as first lady. let's bring bo back up. i will ask you all to sit and being calm. -- and be calm. he is excited. i will bring him to each section. thank you. learn a lot. yes, i know. i know, i know. i am going to start in this section. i will walk around. stay in your seats. i know. come on, bo. this way. do you want to see him? bo. all right. i am coming around this way. yeah. yeah, i'm going to leave the treats. the floor is slippery. come on. all right, you guys stay in your seats. i will bring him around. hey, guys. i love the monuments. the washington monument. thank you, sweetie. that is sweet. stay in your seats. i will come around. [inaudible] [inaudible] >> and a look at the support -- the supreme court appointment process. later, kaplans the bilious testify as in the budget request for 2011. tomorrow, on"washington journal" scott wilson and gail chadic look at the weeks ahead. then, the president and ceo of spirit airlines speaks about charging for carry-on bag. washington journal live at 7:00 a.m. eastern here on c-span. >> a discussion on the appointment process for supreme court nominees. we will hear remarks from barbara perry. this is hosted by the supreme court historical society. introducing her is chief justice john roberts. this is about 40 minutes. -- this i 50 minutes. >> good evening and welcome. lawyers are given to some strange language called "legalese." this is a no-no. [laughter] this pda, ipod, whatever -- off. not on silent, but off, because it can affect the sound system. i am raff lancaster, president of the supreme court historical society. -- i am ralph lancaster, president of the supreme court historical society. i am pleased to welcome you to the series about the supreme court. the society has been holding lecturer series since 1993. -- lecture series since 1993. each one is published by our society in the journal of supreme court history, so that we can forever preserve a significant and scholarly work which we introduced to our members -- preserve the significant and scholarly work which we introduce to our members bridges is made possible by the generosity of our trusties -- to our members. this is made possible by the generosity of art trusties, members, -- of our trustees, members, and other generous donors. our programs are hosted by the justice of the supreme court -- by a justice of the supreme court. we could not be in this magnificent room without their support. tonight's post is just as john roberts -- host is justice john roberts. has asked that there be no extensive introduction, both because he does not need one, and because i do not want to risk condemned the court -- contempt of court. [laughter] i would be remiss if i did not say again that, long before he ascended to the bench, he was a strong supporter of the society. we are now, as we have been for years, deeply in is his debt for that support. it is my honor to present him to you. [applause] >> thank you. thank you very much. i did not quite know what he was going to do when he picked that up. we have the cases today involving those. i thought -- we had a case yesterday, involving those. i thought he was going to clear up some confusion. thank you for joining us for the sectongld lecture on the supreme court and the separation of power. the series is sponsored by the supreme court historical society. we very much appreciate all the society does to improve the public understanding of the supreme court and our nation's constitutional form of government. these lectures are just one example of society's -- of the society's wonderful programs. tonight, professor barber perry will talk about the appointment process for supreme court -- professor barbara perry will talk about the appointment process for supreme court justices. justice stevens is 90 today. at 90 years of age, when most people have logged in a couple of decades of retirement, he was on the bench today at my side, not only working, but making sure that the lawyers appearing before us earned their pay as well. prof. barbara perry has a very distinguished resonate. -- resume. she is the carter glass professor of government at sweet briar college, and the director for the center of civic renewal, which works to foster effected citizen engagement through enhanced public understanding of the american constitutional system. she received her bachelor's at the university of louisville, and made from the university of oxford, and ph.d. from the university of virginia. when she was at louisville, she visited louis brandeis's grave. it is at a law school there. i just learned that a short time ago. she is a very prolific author. her works include, "the supremes -- an introduction to the united states supreme court justices," and "jacqueline kennedy -- first lady of the new frontier." this is a homecoming for her. she is currently working on a volume with a professor about the supreme court and the judicial process. please join me in welcoming prof. perry. [applause] >> thank you, mr. sheets justice for your kind introduction, and for honoring us -- thank you, mr. chief justice, for your kind introduction, and for honoring us with your presence tonight. my own mentor, henry abraham, is here this evening. he taught me everything i know about judicial appointments. his book is now in its fifth edition and is the definitive work on supreme court nominations. i would also like to thank my longtime friends, students colonies -- friends, students, and colleagues. i would like to thank our dean. you may have heard about a recent speech given across the street in which a resident of a large white house at the opposite end of pennsylvania avenue inadvertently advertised the theme of the historical society 2010 lecture series by announcing his respect for separation of powers among the branches of government. i must admit that the theory behind separating government powers tends to make my students by slaves -- students' eyes glaze over. a poll revealed that many americans identified the three branches of government as follows -- republicans, democrats, in independentband i. i was grateful that the aba's president had chosen separation of powers as the focus of his tenure. our work was cut out for us. how unfortunate that americans have so little understanding of this crucial element in our nation's constitutional structure. a noted british political theorist and oauthor observe that the principle of dividing government authority along functional lines accurately, legislative, judicial, executive, but tends to -- at times to -- attempts to establish a viable road. it is important that the government be divided. each government branch may not be allowed to encroach on the other branches. in this way, they will each be objected the others. no single group of people will be able to control the machinery of the state. though political scientist could begin as separation of powers discussion without referring to the oft quoted federalist paper no. 51, where madison describe the need for what he called "the necessary partition of power between departments." that was the language used -- that was the language he used. they may be the means of keeping each other in their proper places. the father of the constitution explained that, "the separate and distinct exercise of the different powers of government is essential to the preservation of liberty." as he said dick that each department should have a will of its own -- as he said, "each department should have a will of its own. in theory, all appointments should flow through the people with arc at had disingenuous since in the house of representatives -- growth all appointments should flow through the people. this was somewhat disingenuous since only the house of representatives is chosen by the people. the primary consideration ought to be to select that mode of toys which best secures these qualifications -- most of that choice which best secures these qualifications. at the philadelphia convention, the framers spend more time discussing the process of judicial selection than the criteria for choosing federal judges. according to madison's notes, the delegates initially considered appointment of federal judges by the national legislature. james wilson, pennsylvania's brilliant representative, and a future member of this court, opposed the proposal, arguing that, "entry, a partiality, and concealment resulted from judicial appointments by legislators." moreover, the primary reason for creating a single executive was so that one official would be responsible for nominations. john rutledge of south carolina countered that granting so great a power to any single person would cause the people to think we're lean toward monarchy. he would receive two appointments to serve on the u.s. supreme court. he resigned as associate justice before the court ever convened, to except appointment to the south carolina supreme court, thinking that would be a much more powerful body. congress failed to except his recent appointment after he had served five months. madison oppose legislative selection -- opposed legislative selection of judges. many of the members were not judges with these requisite and particular qualifications. he did not want executives to have the soul appointment power. -- the sole appointment power. madison wanted to give the power to the senate, because its members would be sufficiently stable an independent to follow their deliver judgment. even a founding father cannot be right all the time. at this point in the early stages of the convention, the first discussion of how to choose members of the national judiciary, as it was called, took place on june 5. benjamin franklin offered an interesting anecdote to break the tension. he described the scottish method of allowing lawyers to select members of their own profession to set on the bench. the possibility of dividing the newly selected judges among themselves always motivated the scottish lawyers to nominate the most qualified members of the bar, who obviously would then have the most lucrative legal practices to divvy up among themselves. not a bad idea. a massachusetts delegate suggested that federal judges be appointed by the executive, with the advice and consent of the senate. madison proposed a variation on that idea. the executive appointment of tourists with the concurrence of 1/3 of the legislature's upper house. this would unite the advantage of responsibility in the executive with the security of -- with the security afforded to the second branch. in judicial appointments, the convention began moving toward a variation on the theme of separation of powers that included another crucial component of american constitutionalism, and in checks and balances. -- namely checks and balances. the branches would not be separate. they would interact. the great security against the gradual concentration of the powers consist of giving to those who would minister -- who administer the power to resist encroachment of others. i know my students know this -- "ambition must be made to counteract ambition. the interest of the man must be connected with the constitutional rights of the place." the delegates settled upon the suggested compromise or selecting judges of the supreme court. -- settled upon us suggested compromise for selecting judges of the supreme court. though madison had made reference to these qualifications, neither he nor his fellow delegates were more specific in their bill littlefield -- in their philadelphia discussions, nor in the documents they produced. the u.s. constitution is wholly silent on this subject. begin turn to the federalist papers for some -- we can turn to the federalist papers or some more thought on this. he wrote several common stock for some more thought on this. -- we can turn to that federalist papers for some more thoughts on this. he wrote several papers. he said it is acquired through long and laborious study. that was his only expressed criteria. when i was invited to deliver this talk on the supreme court appointments, how did you know you would be giving this talk on appointments right when we were in the midst of considering them? i have to say it was purely arbitrary, maybe even a tad capricious. i was elated to get a call. i have written and spoken on the topic for years. my dissertation was a quarter- century ago. i have written volumes on the role of the president and senate in court nominations. it occurred to me that speaking for the supreme court historical society, at the supreme court, might require speaking about the court. i inquired, is there a particular approach you would like me to take? she responded, i thought rather breezily, what role has the court played in appointments? has it been a bystander or an active participant? for a moment, my professional life flash before my eyes in and near-career death experience -- in a near-career that experience. i had been invited to give a talk with cheap dignitaries in the audience and have been given a very difficult question -- and had been given a very difficult question. perhaps unfortunately for you, i found some things to talk about this evening. as i pondered the question and reflected on the history of supreme court abominations, i recall instances when members of the high tribunal -- the supreme court nominations, and recalled instances when members of the high tribunal did have our role in it. -- did have a a role in it. -- did have a role in it. i will now refer you to what i call your scorecard. this is the table i handed out. it includes historical examples of sitting justices supporting judicial nominees from 1853 to 1974. why did i choose these dates? as i can best determine, after five months of research, 1853 marks the first instant of the court successfully recommending in nominating -- recommending and nominating. or at least twice as many suggestions, about half of which -- and there were at least twice as many suggestions, about half of which were not successful. they requested a timeframe for supreme court history produces how they define -- supreme court history. this is how they define it. this history stops with justice stevens appointment. happy 90th birthday to justice stevens today. the 18 bit the instance occurred during pearsons administration -- the 1853 instance occurred during pearson's administration. they wrote on behalf of john campbell and deputized the associate justices to deliver the supported letters to the president personally. they campaigned for him and were successful. the president considered no other candidates in the senate approved the nomination with alacrity. campbell resigned from the court in 1861 and became assistant secretary of war for the confederacy. president clinton did agree kept his own counsel when filling vacancies. his first appointment -- president lincoln typically kept his own counsel when filling vacancies. some and chase was named as chief justice when -- when roger taney die, another was named chief justice. -- when roger taney died, another was named chief justice. age-related bonuses made his service to longer feasible. -- age-related bonuses -- illnesses made his service no longer feasible the haze presidency -- feasible. the hayes presidency is another example. chief justice morrison wade recommended william wood. he had an additional opportunity to nominate a justice only two months before leaving office. stanley matthews at also been supported by his close friend, justice wade, whose seat he would fill. the successor, the ill-fitted jeans are killed, would renominate -- be ill- -- the ill-fated james garfield, would renominate him. they supported horace gray. the president also recommended melville fuller. he had actually recommended an illinois attorney for the post, but he declined the offer. the chief justiceship went to fuller, whom the press labeled the most obscure man ever nominated for that exalted position. when justice matthews die, president harrison took nine months to compile a long list of possible nominees before narrowing it down to two. he chose to friends with similar credentials, degrees from yale, and service on state and federal courts. they referred to each other as president herring -- they referred each other at. but justice miller fell victim to a stroke. harrison had the opportunity to name the runner up to the high court. he would recommend jackson to fill the 1893 vacancy. apparently, jackson's friendship with benjamin harrison from their days in the u.s. senate overcame their partisan differences. nor did the senate majority delay the confirmation. let's turn to the second category -- 20th-century examples. justice louis brandeis had only been on the court after his bruising confirmation battle for a few months when he became one of several high-ranking supporters of john hasn't clark -- john clark. he was chosen unsuccessfully to run for the presidency in 1916. it is chief justice william howard taft, the only individual to serve at both the head of the executive and the judicial branches, is among the top two reminders of nominees to the president. his chief rival, pun intended, is justice warren burgar -- warren burger. he is accorded near-great status. his leadership is unparalleled. sadly, he did not live to see the building completed. having been persuaded to run for president by his mentor, theodore roosevelt, who launched a third-party candidacy against him, precipitating his defeat for a second term, allowing democrat woodrow wilson to win the presidency. as the court's sole former president to serve on the bench, he is the only person to have engineered his future appointment from the white house. several biographers suggest that he promoted justice edward white to the position, rather than his younger colleague, because white was only 48 and would probably serve long enough to preclude a future president from appointing taft. white was 55 years of age at the time of his promotion, served until 1921, when president warren hidiharding fulfilled t's goal. he began actively participating in every presidential position to fill vacancies. he wrote, i look forward to having you on the bench with me. i know as you do, that the president intends to put you there. president harding was happy to places brilliant friend on the court. his next choice for the court was actually his second pick for the next seat. the president had first approached our renowned litigator, whom he considered to have sounded use, despite his democratic affiliations. the man declined. pat -- taft turned to butler. they suggested he would be a logical and reliable counter to justice louis brandeis's perceived radicalism. taft refer to louis brandeis and oliver wendell holmes as a bolsheviki's. the chief thought the court was top-heavy with seven republicans. he walked -- he worked to block the nomination of benjamin cardozo. he feared he would join the others and form are radical 30. -- form of radicals trio. -- formed a radical trio. taft and an associate justice had also worked behind the scenes to attract support from the catholic hierarchy for butler's nomination. although religion was irrelevant, with chief justice white's death, no catholic would remain on the bench. harding's last nomination to the court, edward stanford -- edward sanford. in 1925, the big chief enthusiasm in recommended -- enthusiastically recommended harlan stone. when holmes stepped off the court, his colleague urged president hoover krueger -- urged president herbert hoover to name benjamin cardozo. a justice himself, stone offered to resign from the court, in case people would object to cradozo becoming the third -- cardozo becoming the third member of the court from the state. this was a selfless act. hoover finally nominated him in the early 1932. he would serve only six years before his premature death. he is uniformly considered to have graced -- considered among the greats to have graced the nation's highest court. the vacancy then put franklin 6 -- franklin roosevelt in a political bind. he wanted to nominate felix frankfurter. the western states were still without representation on the court. fdr thought ff would be a perfect replacement for brandeis because of their shared religion. geographic considerations were beginning to wane as supreme court selection criteria. justice stone was among a host of frankfurter supporters. he told fdr to ignore the geographic factor and focus on merit alone. president roosevelt ultimately followed the recommendations, nominating frankfurter in early 1939. one month later, justice brandeis resigned. they had combined their support for a plethora of progressive policies predict had fallen out over his opposition to fdr's -- policies. they had since fallen out over his opposition to sum up at the are's stances. -- opposition to some of fdr's stances. roosevelt had packed the court by attrition. he did make one bipartisan nomination, in which justice frankfurter played a key role. charles evans hughes, the courts leader through their fractious fight over the new deal, announced that he was stepping down in 1941. fdr wanted to appoint attorney general robert jackson. as he deliberated, he spoke with the outgoing chief and the associate justices, who urged him to act with dispatch. he called hews to a white house meeting where he declared that justice don's record gave him first klan -- just as stone -- justice stone's record gave him first priority. ff noted that he preferred the attorney general because of their close friendship. the sitting justice observe the obvious. stone had sonority in his favor -- seniority in his favor. frankfurter asserted that stone's republican credentials were an asset. frankfurter advised fdr that a bipartisan pick for chief justice would serve both the president and the court well in the turbulent days ahead. fdr advised jackson that he could inform stone of his television -- his elevation to chief. frankfurter was right. his nomination met with unanimous acclaim. harlan stone urns another award -- not surprisingly, it is the most -- earns another award -- not surprisingly, it is the most bipartisan award. a republican who recommended a democrat to republican. an independent, frankfurter, to democrat, fdr. and a republican to democrat, president harry truman. though truman knew all of his four appointees well, chief justice added his support for burton. perhaps the award should have been labeled the most non- partisan. stricken by -- stricken by of fatal hemorrhage, he was replaced by truman. as chief, he supported tom c. clark, the attorney general, today -- to secede. i am pleased and privileged to call my friend justice tom c. clark's daughter who is here this evening. it is wonderful to see you. thank you for being here. justice frankfurter continued his appointment influence. the jewish seat would be banned and with his departure -- would be vacant with his departure. replacing him with another jewish justice was too obvious and cute. nevertheless, jfk did so. according to president kennedy's council, jfk had consulted about his choice with justice frankfurter and chief justice earl warren. his successor, lyndon johnson, always had his own ideas about judicial appointments. he did look two sitting justices to affirm his choices. lbj's longtime friend and political allies did not want to send the bench -- ally did not want to ascend the bench. johnson twisted tehe arms of two men -- sending justice goldberg to the u.n. lbj @ enlisted justices hugo black and another -- had unless the justices hugo black and another -- had enlisted the justice hugo black and another. the chief remained until richard nixon named warren burger. he would rival chief justice taft for the label "most active participant in presidential selection of justice's." he received an inquiry from the nixon administration. could the president discussed supreme co appointments with him? discuss supreme court appointments with him? a frustrated president searched for nominees. on nixon's original short list was the eight u.s. circuit judge harry blackmun -- the 8th u.s. circuit judge harry blackmun, who referred to and sell as old no. 3 -- who referred to himself as old no. 3. when justices hugo black and john marshall harlan ii retired in close succession, he had two places to fill. deciding cases with only seven justices was problematic. administration had submitted the following three names for evaluation. an arkansas visible bond lawyer, california court of appeals judge, and senator robert byrd of west virginia. the first-- this was the first serious consideration of a female candidate. women should not serve in government because they are erratic and emotional -- that was one ". thank god we do not have any in the cabinet -- that was once quote. think god we do not have any in the cabinet today. chief justice burger fired off what he labeled a personal and confidential letter to the attorney general, repeating his threat -- for feeding his previous recommendation -- repeating his previous recommendation. the summit had asked that -- this and had asked that his name be removed from consideration -- the gentleman had asked that his name be removed from consideration. even after he was called direct it and told it was his duty to accept the nomination, he said he would consider chief justice paul then called -- said he would reconsider. the chief justice then called. he reassured the doubts and worries when h. he felt disappointed that no one expressed regret that he might be leaving. it occurred to him that they might relish the prospect of carving up is a share of the lucrative practice. benjamin franklin was right about the scottish system of judicial appointments. it led to the naming of the best lawyer to the best. still less than certain that he should leave his beloved home and career, with his wife in tears -- she was a sweet briar alumna -- i loved to see her at alum the conscience -- at alumna functions. she would always ask if i was a student. they called john marshall -- john mitchell and reluctantly agreed to except the nomination. we are towards the end of the outline. let's look at patterns of court involvement in appointments, are penultimate segment -- our penultimate segment. the court's involvement seems to be a postbellum phenomenon. little evidence points to justice is making special -- making successful nominations during the first half century. why is that the case? several factors arguably play our role. first, the justices in the initial decades of the court or simply closer in time to the birth of the constitution -- were simply closer in time to the birth of the constitution. second, think about the court as an institution and its rank order among the three branches. prior to the great chief justice marshall assent to the court, it could not claim parity with the legislative or executive branch in either prestige or power. no one, including members of the court, appeared impressed with the authority of the federal judiciary. the lack of a building to call its own symbolized the courts status as the third branch. why would a sitting member of the court recommend the nomination of a colleague, ally, or friend, to an institution that had so little clout, and whose duties included the arduous and understandably the price -- understandably despised role of circuit riding? moreover, it took the justice's far afield from the nation's capital, where they might have had the most direct contact with the president. it is probably more than coincidental that the justices informal role increased steadily after their circuit riding requirements ended in the 1890's. third, one historian has accurately observe that chief justice marshall did not need a temple of justice to create a template of justice, which obviously increased the court's influence. the presidents whose tenures he overlap or of a different ideology than him, and -- who is 10 years he overlaps or of a differen were of a different ideology than him. though the senate did not convict, the indictment must have been traumatic for federal justices. the court went out of its way to avoid precipitating political attacks. plunging into nomination politics may have seemed risky. a few brief statistics. of the 104 successful appointments to the u.s. supreme court from its establishment to 1974, sitting justices or chief justice have had a role in roughly 1/3 -- about 27. of those, a little more than 1/3 were supported by chief justices. more than half of those were supported by two chief justices -- taft and burger. they suggested all but one of their aspiring nominees to the respected presidents who appointed them to the center chair. earl warren, when he assumed the chief justiceship, consulted with jfk and lbj. they were from the opposite party of his appointed president, republican white eisenhower. -- republican dwight d. eisenhower. what would the founders make of this extra constitutional record compiled by sitting justices? would they conclude it depicts occasional departures from their process? in a way, recommendation of supreme court nominees by income and justices comports -- by incumbent justices comports with one particular point. the people, as he said, could not select. rather, the executive would be -- with the advice and consent of the senate would apply the proper criteria for selecting. would not incumbent members of the court a better than anyone what qualities their colleagues should possess -- members of the court know better than anyone what qualities their colleagues should possess? here is the final count. three greats, five near-greats, 12 average, 2 below-average, and 2 failures. the distribution skews to the qualitfied. the three rates are 1/4 -- three greats are 1/4 of those in the highest category. how does this square with the theme of athe lecture -- the separation -- the separation of powers? the priestly image places the tribunal above politics. in -- involvement may be a gamble they prefer not to take. the trade-off for dependence on the other branches for appointments is judicial independence, a treasured element of the american government system. better to remain aloof from the political process for the sake of judicial atomic, unless the latter is at stake -- a judicial autonomy, unless a the latter is at stake. chief justice hughes said, "the republican doors -- if the court has indeed helped to preserve the nation, which i think it has, it is the separation of powers principle, with its exquisite corollary of checks and balances, that has preserved the supreme court of the united states. make it always be so." thank you very much for your attention this evening. i hope to speak with you all at the reception. [applause] >> thank you, professor, for what i considered it to be a fascinating discussion. i also express my innocence. until you begin to speak, i had no idea that any justice of the united states supreme court had ever been involved in the political process for the appointment of another. i am sure nobody else here was doing this, but i was bringing it forward to the present court, in trying to imagine -- >> it is not allowed. >> i know. i tried to imagine, given the controversy involved in the confirmation progress, getting involved in that process. i just cannot imagine. that is me. thank you, justice roberts for hosting -- thank you, justice roberts, for hosting this evening's presentation, and for your continued support. the next lecture in the 2010 s series will be next week -- 2010 series will be next week. tickets are still available. i refer you to my good friend google. just putting supreme court historical society. you can find out the number to call to get tickets. if you are not a member of the society, you can find of how to become a member. -- find out how to become a member. we would sincerely welcome you to make that connection. we will adjourn shortly. we will go into the conference room for refreshments. as i do each time, i invite you to introduce yourselves to the officers who are here into the members of the staff -- and to the members of the staff. we have a number of people here who are in charge of programs and membership. you can identify us by the funny little things that we have hung around our necks. if you have not met us, come up and introduce yourself. we would love to meet you. we would love to be able to improve. we would dearly love to hear from you. thank you for coming. we are adjourned. [applause] discussion in february. >> i want to think the texas law review leadership and a number of others -- too many to mention -- all of whom worked incredibly hard on this project. it has come off with very few hitches. i am very grateful for your efforts. i also want to thank our cost, the strauss center, for its role in putting together this wonderful event. we have been talking for more than a day and a half about the tensions that arise when we try to reconcile our values in relation to privacy, in relation to security, and in relation to technological change. technological change throws a curve balls at our efforts to pursue national security in a way that is consistent with our values. implicit in the discussion we have had -- we have talked about the role of judicial review, the role of congress in exercising oversight, the role of the public with electoral pushed back when certain policies are revealed. implicit is the idea that you know what is happening. insignificant part, you know what is happening thanks to the media. it is only fitting that we conclude with a panel that is going to examine the role of the media in a world that is experiencing rapid technological, change at the heart of their industry. i am going to turn it over to my friend and colleague, professor david anderson. he is the centennial chair of the university of texas school of law. he worked as a journalist for several years before he came to law school. he went on to become the editor of "texas law review." david specializes in a scholarship in both torte and communications law. he is an interesting libel law and privacy. he is a contributing editor to "texas monthly" and on the editorial board of the texas observer. i turn it over to you. >> this is a very distinguished panel of media representatives. i think we have at least two- thirds of the journalistic expertise on national-security matters sitting at this table. i am extremely pleased to have all of you here. let me start on my right. we have michael isikoff, probably the one of us who is the closest to a household name to all of you. he is the investigative correspondent for "newsweek." he covers national security matters but he also does a lot of other things such as presidential indiscretions and other, sexier topics. he is an extremely well-regarded correspondent in many fields. to my immediate right is mark mazzetti of "the new york times." he is a pulitzer prize winner. in this context, probably his story about the clandestine cia operations are the ones that are most familiar. march is the national security correspondent in the washington bureau of "the new york times." to my left is ellen nakashima. she is at "the washington post." she is a national security reporter as well, with special expertise in privacy matters, or certainly a special attention and interest in that area. marc ambinder is sitting next to ellen. he is political editor of "the atlantic." i would say that almost everybody at this table is an online journalist as well as a print or broadcast journalist. marc is one of the pioneers of on-line political blocking. next is ari shapiro of npr. ari does national security reporting, but he also has a broader portfolio, governing legal affairs all over the country and various kinds of legal controversies, including some of the jurisdictional questions that turned out to be particularly thorny in terrorism cases and who can try whom and where. at the end of the table, not least by any means, is judge robert sack of the second court of appeals in new york. judge sack was a distinguished media law practitioners for his entire pre-bench career, very highly respected. he has been on the court of appeals for the second circuit for least 10 years, maybe a little bit more than that. a very well thought of member of the federal judiciary. in addition, he is a scholar. he has a superb treaties on libel and scandal. he continues to write a law review articles while he is on the bench. he teaches a seminar at columbia. i am very happy to have all these people here. we are not going to have been the opening statements. this is going to be a free-for- all. will try to break off and leave plenty of time for questions from the audience. we heard a lot the last couple days about oversight. a number of the speakers described at the oversight mechanisms that are in place internally in the executive branch and through the court to attempt to reconcile the privacy and national security concerns. but the american tradition is that the ultimate role of oversight belongs to the american people. it is only to the extent that the american people are able to be informed about these matters that oversight works at all. i noticed this morning that prof banks mentioned that he feels frustrated by not knowing enough -- that there are just too many things he does not know about the way the national security and intelligence operations work. my first question to the members of the panel would be do you feel like you know enough about what goes on in the national security apparatus of the government to keep the public informed. do you want to begin? >> sure. before i say anything, thank you to "texas law review" and bobby for putting this conference together. it has been a fascinating discussion by experts in the field. this could be amateur hour compared to what we have had before. i think it will be interesting. we are all proud to be here. in answer to your question, the answer is no. i do not feel i know nearly enough about what is going on. i have said before that covering national security broadly and intelligence specifically -- if i know 10% of what is really going on that is a major victory. so much of it is outside of my view, despite my efforts. and it will be. and i am never going to learn everything, nor is anyone here. even if we did, there would be a not we did not report -- there would be a lot we did not report. the answer is that there is so much that we do not know. because we are in the dark about a lot of things, the public is. we go out every day and try to learn more and report it in a responsible way. we hopefully better inform the public debate. that is a quick answer. >> michael? >> let me associate myself with markc's remarks -- with mark's remarks. this has been a fascinating symposium and i have learned a lot. on mark's point, absolutely. we do not know enough on these matters we have been talking about. i will get in my particular couple of ploaudits for the role of the press and my particular message, which like to spur discussion on. in terms of oversight, the basic problem is a continuing theme in government over classification. if you doubt that is a serious issue, just look at everybody who studied the issue -- study the problem over the years. tom kaine, after he was through chairing the 9/11 commissions, said three-quarters of what he read the was classified should not have them. if you want to go back further, there was a guy named rodney mcdaniel, who was secretary of the national security agency under counsel under ronald reagan. he told a commission that only 10% of classification was for legitimate protection of secrets. think of the implications of that for national security. everybody here takes a national security responsibilities seriously. they protect secrets. they view that as a code of honor that the protect secrets. how many people who are cleared into these programs we have been talking about take seriously these kind of criticisms that have real national security implications -- over classification, how much that limits debate, how much that limits what we can know about and hinders a solution to the problems that we have been talking about. i can elaborate on those things, but i think it is something we should all consider when we are talking about cyber security and figuring out how to protect the country from cyber attacks. are the smartest people who are dealing with that issue -- is the universe of all the smartest people in the country who are dealing with that issue encompassed by those who are cleared , or is there a range of people who could be brought in to try to solve that problem if we worked more vigorously on declassifying more information to have a vigorous discussion? >> in that connection, i am going to ask a member of the panel down here -- how much of what you know comes from unauthorized leaks? >> the best bits. [laughter] >> i want to offer my congratulations to bobby and the students for putting on a great conference. i have learned a lot these past couple of days. i wanted to sort of follow up on what my colleagues here have been saying. i to feel -- i am too feetoo feo not know as much as we should. just on the topic of cyber security, which i have been looking at for the last five or six months -- i have spoken to a number of current government officials and former officials who themselves believe that there is too much classification in the field of cyber and that not only the public debate but the government itself would be better served if there could be a fuller, franker discussion about both the threats and in the area of -- this gets a little dicier, because now we get into the areas that could possibly be a cyber offense. but think of the complications from not having a fuller debate. too often, the public discourse is shallow and cheapened. it defaults into familiar lines. nsa, big brother, once to scoop up all of our information. we're going to have a huge cyber pearl harbor armageddon if we do not do something. i think we really need to start to think in terms of what actually we are capable of doing, what we want to do, and what authorities we need to do that. who should we really want to have in charge of that? that would be -- i would like to make a pitch to the government officials who are out there, many of whom have helped me try to understand this debate better. if you could try to think of ways to talk about this in a little more public, more transparent fashion, it would probably help build public support for what are necessary policies for funding cyber programs and for perhaps shaping smarter policies that may avert a stumbling into an unwanted cyber war. >> i will go beyond ellen and say that on the cyber issue in particular the over classification is directly harming our national security in this way, which is that all of us have talked to people who have a general sense of the problem. we understand that the basic solution at some point to protecting the .com domain, which is 80% of internet traffic, is to get an agency that everyone is afraid of but that has the capability, the nsa, up on the domain. basically, have the nsa do packet inspections on all of the incoming and outgoing traffic throughout the united states. that is the solution. we know that is the solution. it obviously carries with it a number of extremely difficult political and technological questions. but that is the solution. the sooner we start to talk about this in an open way, the sooner we can convince people in congress that they can talk about it and not be afraid to talk about it and the sooner we can move toward a regime with self auditing systems, however it is going to work. part of it is, as one example -- auditing technology exists, but without the demand for it it will not be -- the level at which the technology increases and sophistication to the point where you can self audit trusted analysts in real time, you will not get there. there are absolutely direct consequences to not talking about the cyber debate. people are afraid to mention the words nsa. the big irony -- this is something that jim lewis will point out -- is that the only people in the broad arena of cyber who really do not have a good sense of what the united states' capacities are is the american people. the chinese know. russia knows. sophisticated crackers know what the nsa can and does do. they know the technology. they know what is possible. they know what government is doing. at some point, you are not keeping secrets from your enemies. you're keeping secrets from the american people to avoid a political debate that you yourself say is very necessary. if it sounds as if i am frustrated, i am. it is recursive to me. it does not make sense. again, i think in and of itself it makes a compelling case to start talking about these issues in a way that is more clear. the former dni who once took the opposite side on this debate has come over and wants to talk about this as openly as he can within the structures of how he is limited by his condition -- by papers he signed the first day when he got his top-secret clearance. i will stop there. it is not just a matter of principle here. this is a matter of direct national security harm that overclass vacation is causing, i think. >> it would be a pleasure to be here even if the alternative for not being buried in 3 feet of snow in washington, d.c. we have talked about the balance between national security and privacy this weekend. there is a simultaneous tension between transparency and secrecy. i see us as being on one side and many of you as being on the other side of that. it may not be in the cards to make a lot of headway on the whole declassifying 95% of what is classified campaign. there is another kind of transparency that is easier to accomplish that is equally valuable to the american public. i am reminded of a round table conversation that alberto gonzalez had with reporters covering the justice department during the trial. one of the reporters around the table said, "explained to us the thinking behind classifying him as an enemy combatants." this was not a national security secrets. gonzalez said, "there was a sense within the government that we should find a high-profile terrorism trial and see if it worked in an article 3 court." he said the guy pleaded guilty and then we went through this whole huge trial that cost a ton of money and ended up in a life sentence rather than a death penalty. i am not sure whether it worked as well as we might have hoped. i do not know what the likelihood is we will try it again. he is not revealing something classified. he is not telling a national security secrets. he is giving some transparency in a way that i find useful not only to me but to the listeners are reported the story to the next day. i can imagine people sitting here in the audience saying "you would like them to declassify everything. it is not going to happen." maybe not. this other transparency really can happen and really can help improve the discourse and public understanding on this front. >> do you want to weigh in on this subject? >> i want to note first that four people have been involved in this, including bobby, and have had in common that they were all second circuit law clerks a one time or another, bobby having been mine, which explains why i am here. [laughter] you need an explanation to why i am here because as i've been thinking about this for two days there are two intersecting circles that are involved. one is i keep thinking the new deal -- what did they call washington? they had not built the beltway yet. one is the beltway. the other is academia. that is a whole different circle. they intersect. i once read a law review article in the "george washington law review." i cannot say i understood it, but i can say for sure that i could follow it -- the whole article. i feared for his career. in any event, i say this because it is academic at and i am outside both of them. i am one of the few people here who is genuinely an outsider. in fact, i now am the person on the second circuit, 20 judges or so -- i now know more about national security than any other of my colleagues. does that scare you or what? i am an outsider. as an outsider familiar with the press, i want to say this. in terms of secrecy -- it is hardly my insight. it was best put by professor bickle, in a book called "the morality of consent" in the mid-70s. the question is the rules of the game. this is an adversary process between the people on this side, that is to say the journalists, and the government. it always will be. nobody is going to solve this by saying "we have a new freedom of information act. now the press gets what it wants and we have solved the problem of openness and closeness." the way we as a country have solved that -- one never can know what secrets did not get out that should have. we have solved it by having this adversary system with the journalists on one side and the people with the inflation, the government, on the other side. the tussle with each other, constantly trying to get what one person thinks is secret. they try to keep it secret. it is an adversary game, and a serious one and an important one. once they get it, they are responsible. there are things, as far as i know, that they get and will not publish. they know well they ought not to. basically, it is the rules of engagement that are important. the thing to be concerned about is what happens when one side steps across the adversary relationship and decides "my interest is more important. i am more true than they are." either side -- when one side decides -- when the people who were keeping the secret say "the journalists have that and we must do something about it," like the pentagon papers case. we have a history of that. all i want to do is -- and vice versa. if the press can get information in the press knows perfectly well, my colleagues know perfectly well they should not, step over the line to get information they ought not get -- my only plea on this issue of to open or too close to is to remember the rules of engagement and to obey them. >> i had no luck in getting a journalist to confess how much of what they know comes from unauthorized sources, but i am not giving up. i will oppose this from a different way. everybody knows there is over classification. everybody knows there is rampant over classification. the fact that material is classified does not stop you and you and you. people are always disclosing classified information. government officials and reporters are. judge sack ask the question -- what are the rules of engagement. that is the question i want to put to the journalists. you say you are not bound. what are the criteria? another way of putting the question is are there legitimate national security secrets which you would decline to publish even though you believed it was important news? >> i think this happens a lot more than you think. all have less -- all of us have been in situations where we have learned something. when it is really serious, when it has serious national security implications, and would jeopardize troops in the field or informants or the lives of people, responsible officials in the government let us know that. invariably, we do not publish it. mainstream news organizations deal with the government all the time. frequently, on these very issues, it is very rare that when a senior government official goes to a news organization and makes a strong case that the publication will go with it. maybe markets speak to this better than i, but the classic example on the other side is when the new york times went with a story against the strong urging of senior government officials. that is when marks colleagues broke the story about the warrant was wiretapping program. that has been of much interest here. you know the story. the first time around, they sat on the story began in 2004. they did more reporting and came back in 2005. the bush white house and administration officials urged the paper not to publish. the paper published anyway. they concluded there was no great harm to national security or it would be overcome by the public learning about this program the president had authorized. how many people think the country would have been better off if we never knew about that program? look what happened as a result of the disclosure. a lot of public attention on what they were doing. congress took notice. they rewrote the law on how electronic surveillance took place in this country and put it on a firmer legal footing. i think most people -- if you disagree, feel free to step up afterwards and say. but i think most people would agree we are better off as a country today because we have a much firmer legal ground in for the kind of surveillance everybody thinks is necessary. >> is that the criteria? is it for each individual journalist or news organization to make up their own minds? will the country be better off if i disclose this national security secret? >> i will be brief and say that since we know that we cannot trust the government to make sound decisions in this area, and i think there is pretty ample history of that, i think that yes. this is a tension. this is a game. it is a process. it is a dialogue. i think absent really strong examples to the contrary i would say news organizations can be just as responsible as political officials, who have their own political interest in making those decisions. >> ellen, do you want to comment on this? >> i think mike summed it up quite well. there is a healthy tension, this adversarial relationship between the press and the government. that speaks to our role as watchdog trying to hold government accountable as well as our role to help inform the public so that the public can be part of a healthy debate about the future of our country and national security. in that sense, we are both adversaries. is a healthy relationship in which if the government can be a little more transparent at times i think it will find that through our role as watchdog they are also helping inform the public. getting back to the idea of the balancing act between national security, public interest, and whether we would be endangering national security, i think it is up to the editors at every organization to make that call. i think in the case of the warrantless wiretapping program it is pretty clear to me that the times came down on the right side and made the call in the interest -- in the public interest. another example that i know has been open to debate in government is whether the disclosure of the swift program for transferring -- for sharing financial data between countries like in europe and the united states. some government officials believe that this closure actually harmed national security, but i have not found my own conclusion on that yet. >> i think -- i am the only one on the panel who did not think bobby. as a political reporter, we see all of these 10 candidates. all the candidates and the first 10 minutes on their opening statements thinking everyone. to briefly answer questions, the amount of information's i get from people who are an authorized to give it is fairly little. a lot is about panel analysis -- about pattern analysis. even in the short year or so i have been doing it, there been a couple of instances where on various stories some of them will say "can you not mention this particular detail?" is not germane to the story and i am usually willing to take it out. there are no formal rules of engagement. there are principles and there are human beings who are wrestling with these principles. we journalists have to recognize, particularly if we have an audience, we have enormous power -- power we do not always conceive of. that is one reason why -- and i may be different than other people on this panel -- i do not necessarily favor a reporter shield law. i am not sure what we do to deserve that. i am not sure whether we of exercise our power responsibly enough. a basic shield law i am fine with, but a blanket shield law that essentially privileges the side of reporters when it comes down to very serious cases of national security disclosure -- i think if you are a reporter and you want to protect your source, you go to jail. that is in some sense the responsibility we bear for having this enormous power. perhaps as an amateur in covering this and i start to break stories of consequence i will change my mind. [applause] [laughter] it does strike me we do have an enormous power that we often do not quite come to terms with. i think the better of those -- and people among this panel are the best of those, myself excluded -- the amount of time we take thinking about the balance between what people should know per se is what people should not know and what is legitimate to protect secrets -- i think most people here would be impressed by the amount of time we think about that seriously. it is not just a reflexive instinct that every detail we learn just flows out the door. i have answered four questions. i will stop. >> i want to follow up a little bit. mark talked about the power we have, meaning the power of the mainstream established media. "the atlantic you are the atlantic," "the washington post ," npr, the times, "newsweek." you do not have a monopoly anymore. there are a lot of people who do not have the audience you have but have some of the same power you have to disclose things. all of you talked, and i am perfectly prepared to believe that what you say is true about making responsible decisions about disclosure. not everybody is going to do that. you're going to have people up there who will say "this is my chance to make a big splash. nobody has ever heard of me, but 10 minutes from now they will know who i am. " you've seen that happen in the past. what mechanism is available to deal with that? isn't that a whole new world in which the argument that we are responsible organizations and answer to our readership and all of that is not -- >> do we need a mechanism? >> maybe mechanism is not the right word. my question is what is going to happen. >> i do not know. it could be good. it could be bad. when is a mechanism, i automatically think of a council of wizened elders saying "to is a journalist and who is not a journalist." i tend to believe that quality journalism -- despite what people say about the new york times, "the new york times," a front-page story would change policy quicker than anything some blocker apprentice. certainly, i am speaking again self-interest since my platform is online, but i think there has been an exaggeration. the power of the broad at masses is to distract as opposed to policy change. i think the next -- i think the distinction still exists. i am nervous whenever anyone tries to talk about the rules and the federal trade commission trying to figure out -- for example, any blogger who accepts a mouse pad has to disclose it for some odd reason. i get very nervous when rules are promulgated other to give us advantages or to try to separate that. i believe i am not -- i do not believe in magic. if there is a magical belief that i hold it is that information, when it is out in public -- not always. it will take time. but it will usually benefit things if information than had been previously protected is released. >> i think there is a difference in terms of the process we go through before we publish, we meaning everyone on this panel. we go through that with sensitive information and information that is put out there in the public that we have to decide whether we want to echo. we have to confirm it to be true. then, the decision is do we want to have eight times a story about this subject. day are two different processes. i will address the issue of leaks. i do not get authorized leaks. they are mostly unauthorized. there is very little authorized information that comes to us. i guess a lot of people think there is, but there really isn't. we have to find it out on our own. when we get this information, there is then this process that goes on with editors where we have to make our own decisions about whether this is worthwhile and permission to report. if we decide that and, we go toe government and allow them a response. in rare circumstances, but more frequently than you think, there will be discussion where they might try to get us to not publish or to withhold some details. we make a decision about -- we way that and make our own decision. it is not me. it is people who make a lot more money than i do. the situation mark described, where it is out there and we have to make a decision about what to do -- it is somewhat the same, in that we have to confirm it and have to decide whether it is in the public interest. i will be quite frank that it is probably a lower threshold for us if it is already out there. i will say it is a lower threshold. if it is in the public debate, we are not the ones to put it in the public realm, it will be "the new york times" more easily. >> i want to follow up with michael since see he has poignant experience in this realm. suppose you have a piece of information and it is important. your editors have decided "we are not going to do this." your suspicion is that a certain website has this information and if we do not run it they are going to. what happens? >> i will make that point very forcefully to my editors. >> what effect would you expect it to have? >> it depends on the story. i think you're probably referring to a particular incident which has been well trodden ground. ultimately, i work for my employer. i have to accept their decisions. generally, we all, except in rare and extreme cases such as the one you are referring to -- we tend to be like minded. we will have differences about what standards are, how much we need to put the story over the threshold. we all generally know the rules. we all generally play by the same -- play in the same ballpark. >> we meaning you and matt drudge? >> me, the people on this panel, and our editors. we'll have a professional standards that we understand. it is a dialogue. sometimes, people will disagree. generally, it is a process under which a little more reporting in this area will get you over the hump or not. there is no -- if you are suggesting -- i am not sure what you are suggesting. am i going to find an alternate route to get my story out? >> i am only asking what affect the existence of the matt drudges of the world have on the decision process of mainstream media. what i hear you saying is not much. >> no. i have been in this business for a while and it has been very much the same at my publication for a long period of time. >> i absolutely echo that. emergence of new media and all these new things has given us a lot more sources of opinion, analysis, and conjecture. that does not mean that as news organizations represented on the table we lower our standards and me for what we will print. we still that the credibility of our sources. -- we still vet the credibility of our news and how much it is in the public interest. just because matt drudge print something does not mean we will rush to match it. >> all of us love being first, but what distinguishes us from the great masses of citizen journalists is that above being first revalue being right and fair at a hearing to certain journalistic standards. hopefully, long term, that is what distinguishes institutional news organizations from the rest. the rest is valuable. in a real way, on twitter, dan shore is no different from dan shapiro. that is a good thing. institutionally and psychically, there is an important distinction. i think that is valuable too. >> matt drudge -- i think his legacy with mainstream media, given how established he is -- we talk about new media. we're talking about social media. we're talking about sarah palin posting on facebook, which is owned by a huge corporation. that is something we have to deal with. a lot of purveyors of new media are owned by the same companies that are traditionally associated with all the media, which is an academic point beyond the scope of this discussion but something to ponder. i wanted to take my opportunity to bash matt drudge, even though he does deliver traffic to me on good occasions. i think at this point he is legacy, but you cannot call drudge -- he is msm as much as any of us. >> what distinguishes him from "the washington post" or "the new york times" is -- this mystical phenomenon of the news room is a group of editors and reporters who, in this relationship of give and take and what do you have and did you get a second source, that's true tension creates the authoritative product that will, in the end, distinguish us from much of the new media, or what ever you want to call it. that affords us the opportunity, as papers who also have a web sites, to establish our niche. >> to take slight issue with that, i think we all have our standards that are inviolable. it is getting fuzzier. because we are all trying to be digital and are trying to keep up with the pace of technology, we have to make decisions. there are decisions made on our website. for instance, if we create a blog and have a forum for discussion, going back to this issue of other people doing with informational we do not -- if they blog and put something out in a forum of ours, it is sort of a roundup of the blogs. is that then in the new york times? it is pretty fuzzy. there have been things on our website i have been angry about. we are citing and referencing, on our web site -- which i do not think we have veted or no to be true. if x blog is reporting something -- it could be anything -- that we have not independently confirmed, where does that take the standards to be? are we responsible, before we put it on our website, to check it out ourselves? increasingly, we are not doing that. maybe that creates a whole new paradigm for what is -- what are our standards. that is something that concerns me and i do not think anyone has figured it out yet. >> mark made the point a minute ago that he is uncomfortable with ideas that there are rules that do not apply to everybody equally, rules that would exempt mainstream media as one example. one set of rules that applies to everybody with respect to national security secrets is the espionage act, which sends people to jail for disclosing certain matters. that has never been applied against the mainstream media geyet, but there is not any exception in the act for mainstream media. there was talk at the time when the lobbyist for the american israeli political action committee were being tried. there was talk that if they could be tried so could any reporter who reveals national security information. if mark is right and you cannot distinguish between distinguithe traitor who wants o disclose information for nefarious purposes and the reporter who wants to disclose it for public informational purposes, is there any reason why the espionage act cannot be used to prosecute reporters for disclosing national security secrets? >> anything i say in this instance cannot and will not be used in the -- will not be used by the justices in this room to open to prosecution under the espionage act. the answer is no. i think there are cultural, historical, and practical reasons why prosecuting journalists under the espionage act is unlikely. one is because the journalists' tendency would be to go on the stand and tell everything they did not put in the article. that would not prevent them from talking. journalists would be combative in that sense. for the most part -- the other thing goes too -- if you get to a certain point, and this is not always been true, but it seems to be true now that if you get to a certain point in your career the cia can make a good case to you that the disclosure of the identity, for example, of a case officer under cover, which i believe is one of the specific threshold in the espionage act -- if you are about to do that and there are ways to convey the basics of the story without revealing the identity of the person, it is a no-brainer and you are going to do that. that happens frequently. i guess what i am saying is there is no reason why they should not. if a reporter discloses the identity deliberately of a case officer under cover and does so willingly, why shouldn't the justice department prosecute the reporter? i do not see why not. how are we special, in this sense? >> i do not know how free you feel to speak on these matters. they may end up in the second circuit. >> there is absolutely no chance. we would be in the d.c. circuit, where the court begins with an f, whenever it stands for. i do not think this applies at all to protecting national security secrets. >> so there is a journalist exception? >> no. you are talking law. we are talking something else. i said i would not quote scripture, but there is nothing new under the sun. that is ecclesiastes, or something like that. you are talking as though this is all new and i am thinking "pentagon papers." if you read the actual decision in that case, a lot of it was -- you are coming in and sing get an injunction. they got an injunction against "the new york times." they said "read the statute." nobody ever seriously thought -- nobody thought of suing them. they sued daniel belzberg -- danielle elsberg and made a stupid mistake of breaking into his psychiatrist's office. >> six justices did not decide the question. they did not address it. >> fair enough, but the government did not ever do that. that is exactly my point about rules of engagement. i do not mean law. i mean rules of engagement. with somebody sitting in uniform there, i am sure rules of engagement is the wrong word. i think of it more as a lawyer. what can lawyers in an adversary rule do with respect to each other? some things you do not or would not do. two of them -- if one could make absolute statements about it, what would be the point of a panel discussion? you cannot do that. you can say generally the government should not go around bringing criminal suits against reporters for writing things that, according to the law, are secret. let me finish this and i will be through. the second thing is very important. i go back and forth as to whether the 71 -- the 1971 -- there shall be no prior restraints was important. what kind of prior restraint can you have? daniel elsburg would have had all the pentagon papers on-line before it ever got to the times. when you talk about being responsible -- you're sitting there, making all these judgments. i am sure you pick up the phone and call the person at whatever agency it is and say, "gosh. we have this and i know you do not want us to have it, but i want to make sure there is not any real damage." if you were in danger of prior restraint, an injunction against publishing, he would not be able to do all these things that you do in order to be responsible. these are two of the rules of engagement, which i think are very important. >> you mentioned the case which is quite interesting. it is a more immediate want to cite, compared to the pentagon papers. the government ended up dropping the case of the spending years in developing it. this is lobbyists that got accused of violating espionage act by receiving classified information and giving it to both a news organization and an official at the israeli embassy. what the defense lawyers cleverly did was subpoena all the government officials with whom they dealt, including the then secretary of state rice, richard armitage, and a bunch of others from whom they had received classified information intentionally for the purpose of getting it out, the point being that government officials find various ways to get out classified information -- that they find it useful to their political or bureaucratic interest to get out into the public domain, making a mockery of our secrecy laws and making it virtually impossible, in this case, for the government to simply use the classification standard as a ground for prosecuting somebody. . . >> if i may, i agree that there are laws and rules of engagement. i wonder if those rules are changing without the explicit acknowledgement or agreement of those parties. the press has documented a skyrocketing number of subpoenas against journalists where, for decades, the rules of engagement were that we would only subpoena you in a special case. if this is a case that is vital, those rules have seemed to have changed. but i agree with you in practice, i do not think that it is safe to rely on that. >> the whole question of journalist sources and subpoenas is a very interesting one. you are right. there was not an accommodation. people read brandenburg. it was written late one evening. it was going one way and then it was going another way. our colleague from the new york times finally wrote something called "bransburg in the emerging protection for journalistic resources. i am not doing criminal law, here. some of this is criminal and some is simple. at but what they finally came up with was an accommodation that worked. it worked. we have to come up with -- you have to come up with a new accommodation. the accommodation that worked was that they had a qualified privilege that was recognized. it was a common law of privilege. sometimes they call that a constitutional privilege. the privilege was very simple. we can subpoena journalists, but only if we prove, first, that is relevant, it goes to the heart of the case, and one would think that is overlapping, and third, you cannot get any other source. that is a very simple thing. unless you can prove that you really need it, then you cannot get a journalist source. that sounds like a pretty easy thing. you -- it worked, but the reason it worked was because journalists are generally witnesses. big deal with here say. they are reporters. they deal with here say. they know all of these things, and all of which can be discovered by a decent lawyer with a subpoena. they never, ever got -- i spent 30 some odd years worried about the subpoena. but could never get through the test. there was always some other way that they would go and find out who your source is and they would subpoena them and give you the information. where it broke down was where people started to worry about leaks. the reason that this was all broken down is because leaks are separate and different. you are an eyewitness to the crime and you were the only eyewitness to the crime and they got to the position where they could fulfil this test. they would find out who leaked and then they would subpoena that. they dealt with successive drafts of legislation could what do we do when a journalist is witness to a crime and that crime is looking osh is leaking -- is leaking. the draft that i have seen of the shield legislation in the senate is at the first that i have ever seen that has two pages. and they have many paragraphs that the one to try to define, in a reasonably modern way, rather than saying "the medium." the rules of engagement work. in the judith miller case, one of the question was who leaked. that is when it all broke down. >> the accommodation and the rules of engagement, much of the presidents of the past -- the precedents of the past, many of the television networks had great power, wealth. they were making a ton of money. they were very secure. they were willing to spend money. they enjoyed a great deal public support. for example, in the pentagon papers case, the public was overwhelmingly in support of what the times was doing the very quickly -- * was doing. -- was doing. they were very foolish for having tried to get these injunctions. no one was paying any attention to the pentagon papers until they made a big issue of it and in every newspaper and broadcaster in the country was focusing on the pentagon papers. the thought that the government was hiring -- hiding something important. my question is, is that all passe? mainstream media is not rich anymore. did not seem to feel very rich. the government does not seem to quake in its boots anymore when the new york times or the post is about to say something. i am not sure that the public is that clearly on the side of the media anymore. does that change the equation as to this adversary role that exist between the government and the media? >> we are not rich. we are not powerful or popular. that is all true. but knowledge. -- acknowledged. i think all of that is true. i have not noticed a change in how we go about stories or whether or not to print. i do not think that -- particularly on the concerns over wealth, we could get wrapped up in legal battles that will bankrupt the paper. if those concerns are real happy times, -- are real at the "times," at least i have not felt any pressure not to pursue what we are pursuing because of any of those three reasons. >> look, as mark said, it is true that we are not as powerful as we used to be or as popular. but the folks in power still do care what we write were put on the air because they care about their political standing at the time. just look over the last couple of weeks how much the barack obama administration has really worked hard to shake coverage of how it handled the christmas bombing incident. they were really concerned about what we all were riding -- writing. it would dramatically change politics in congress on national-security issues, to the point where i mentioned before that the various white house over the years will use classified information to protect its political interests. the other night, i found it interesting when they hastily called reporters to disclose that the nigerian suspect was cooperating and didn't disclose information about the kinds of things he was cooperating with. that is easily the kind of information that, in another context, if i asked, they would tell me that that was classified and that they could not tell me of what he was telling them. yet, that is precisely what they did. they were trying to show that they should have made the guy a enemy combatant. i want to know as much as i can about that, but that is precisely the kind of classic example of how they made a decision to disclose information where they would have otherwise told us it was classified. >> i want to make an observation on behalf of the new media that is not here. just as we, the traditional media, we pride ourselves on being authoritative credible. i think that is in part because the new media depends on government or official sources for a lot of our news. so, and there were a number of recreations of how the white house came to the decision around leaders -- or around new year's. i think that the washington post in the "l.a. times" did take out. they did some analyses of those stories and they pointed out how those stories were straight from the mouth of a handful of approved white house sources or officials who basically wanted to get their point of view out. there was unprecedented access to reporters. they would get these big front- page sunday stories. i was not reporting on that, but i read them and i thought that they were well britain stories. -- well-written stories. i thought that we might get manipulated because of our position and our authority. >> there was a front-page article, and the question that was raised was whether courts, which are presumptively open, have not been closed for more than they used to because the traditional media will not spend the money to keep them open. that was his question. >> one question about the mainstream media questions. if the power goes, things look pretty bleak for newspapers for not migrating successfully into cyberspace and broadcasting seems to be in trouble, too. if the power and wealth of the mainstream media continues to decline, who will play the watchdog role that powerful media adversaries of the government have played for the last 60 years? >> there was a congressional hearing on this issue where the creator testified and he said that the next 20 years are known to be a terrific time for corruption in local and state governments. his point is that there will always be people to cover congress and the white house, but the wisconsin public legislature? maybe not. people will not spend a month doing an exhaustive analysis that the normal newspaper would hang a reporter over deep-seated corruption. i do not think that anyone will do that sort of investigative work anymore. >> i agree and i think that is the primary problem. i think that the big guys will be ok. we will figure out a way to monetize that, probably through pale walls -- pay walls. it will take some time i started my career working for a local television station in orlando. local television news but -- does not always have the best reputation. there was an investigative reporter and an action reporter that did consumer stories. now, they're no longer is. -- they're no longer is. they require more time to put the story together. unfortunately, this is one of those things where i see the problem and i do not see the solution. david simon is probably right. on a national level, monica comes to national security and intelligence, i do not see that as a problem. i think there will be another big organizations and i think we will have enough power and wealth and influence and popularity. the government is not necessarily as rich and powerful for trusted by the people. we are not necessarily in an adversarial relationship, it is not necessarily a zero sum game. just look at the associated press and their state and local coverage. it is very disheartening. if anybody has a solution to that, you will be rich beyond your wildest dreams if you can figure that out because i think that is the major gap in journalism. >> i am sure that we have people out there in the audience that are dying to ask some questions of these panelists. is that all right to go to questions? >> yes. bucs all right, go ahead. what i wanted to follow-up on the discussion from earlier about the increasingly threatening moves by the federal government in the last decade or so as to whether they are changing the rules of engagement to legal maneuvers. you mentioned the apac case. i was heartened to hear that sound like the consensus was that it cost too much of a chilling affect. what about possible other sources and whether you would imagine a chilling affect following that? are you seeing a ratcheting up by the federal government, especially since 9/11, not only directly against journalists, but towards whistle-blowers within or outside of the government? it looks like that is another area where the government has been trying to send a stronger prosecutorial message. there were moves that the government made, for instance, in the one case. i am curious if you have the impression that the government performing some saber rattling? are you seeing more intimidation among sources or potential sources? the second question, it is sort of heartening to hear the threat of espionage prosecution has not seen the chilling to those on the panel. i believe in 2000, both houses of congress did vote to approve an act which would go further than the espionage act. it would automatically criminalize that information. president clinton vetoed that. the second question is more hypothetical. if they were to make a strong statement like that an president obama sign that -- signed it, but it said more of a chill through the organization's? -- through the organization's? -- organizations? >> let's call it a leaker. the question is, which side of the line is that on? i am not so sure. here goes my reputation. i am not so sure that making government employees keep secrets is not precisely what they are supposed to be doing. once the secret gets out, it is when we talk about being on this side and on that side. >> my impression was affirmed by the previous statement of the journalism linking -- journalism leaking you have people leaking from the local government. putting aside weather is good or bad, if that is the premise, the question could be phrased the script -- a descriptive leaper it is it true that government has been taking a harder line? if so, are you seeing more reluctance? >> there have been a lot of investigations of leaders and -- of leaderkers and whistle-blowe. i am actually not aware of prosecutions. i may be forgetting something. the investigations themselves become intimidating. this is to everybody around the whistle-blower. this is a way by which the authorities put the fear of god and to employees about what could happen to them. there is one other point about the threat to journalists. i know something about this because i have been in the middle of it. the real threat from subpoenas to journalists over the last few years has not been the criminal arena, it has been the civil arena. when lawsuits are brought by people in which they try to smoke out the sources of journalists, we had a very damaging opinion in the d.c. circuit that forced the new york times to settle rather than have the reporters go to jail to protect their sources. that was then copycat in the steve and hatfield case -- the stephen hatfield case. it has been really bad for journalists. from what i know, that has been the biggest threat to reporters and their source relationship. >> the government is increasingly finding it difficult to prosecute leakers. and officials first task is to come up with a more administrative internal solution to prevent leaks. obviously, it is something that the government is concerned about. there is difficulty in convictions. what that also means is that the investigation part of it does not have a deterrent effect that they want. the other thing is that the new reporters that are living in this regime are using tricks as far as what they do with their notes. you can anticipate that, six months down the road, someone might want to see your notes. again, you do not want to do it after you get a subpoena because that would obviously not be legal. but, journalists are taught ways reduce the chances that if the sapida was brought forward, the evidence would be turned over, but it would not be as much as you would think because information would not be communicated in ways that were necessarily retrievable by a subpoena. it absolutely does have a chilling affect, -- a chilling effect. but the point about the civil suits and the case law is something that i have not quite considered. i agree that it is troubling. i believe that there are six that are up our sleeves that meant that slightly less threatening, particularly now that we have a general sense of the larger picture. again, i am not advocating that reporters destroy their notes. >> just briefly, as an outside the beltway person, your bias -- you are biased by your experience. you say that you are not worried about civil suits. we were mostly were about civil suits. would you go in there and you are sued for defamation and reporter comes in with a stack like this and says that you said this and this and this pimm this -- and this, you do not have recollection of the source problem. a reporter wrote a story and a few weeks later, they fired one of their vice-president and it was not the source. they thought it was the source, but it was not the source. what is a reporter do about this? >> one thing that i do is that i will put source on a hot dinner receipt and not the name of the source. if anybody has questions, they can come to me and i can verbally tell them. you can argue in some way that i am anticipating -- >> i think that corruption of justice is the word you are looking for. >> i have no pre consciousness of guilt. -- pre-consciousness of guilt. i would assume that most reporters have a version of the same thing. we do it for a very specific reason. it affords -- if protect us from a paper trail that, down the road, we may not want to disclose. >> maybe i revealed something here. i could be sued by the journalist court. >> i just wanted to say that this is a great, experience panel. i am worried about the changes in journalism and having people bought out and reporting news releases. leaving that aside, i in interested in hearing more about your experience between the legislative branch of the executive branch. the legislative branch is very constrained and fearful of having meaningful conversations to try to rebut or respond to what the executive branch is saying. i am sure that it affects the way that the information is conveyed by you wall. invariably, we end up in a situation where we are happy to be called, but often it is the >> of a naysayer. -- it is the >> of a naysayer. -- is the quote of the naysayer. the legislative branch cannot talk to us and the executive branch just holds most of their cards. i am wondering if you can talk about this issue of these legislative branch reverses the executive branch and the types of access that you have or do not have. >> i think that that is a generally true observation. from my minimum experience, the observation that congress -- some members of congress, in general, seemed to be extremely reluctant, not just about these types of decisions, but about anything sensitive relating to the executive branch, where as the executive branch seems to hold many of their cards and they seem to be -- i do not know what to do about it or if there is anything to be done. it may reflect the structural imbalance. speaking of the executive branch. >> i see this on a daily basis. there is a growing plethora of web sites and journalists who are essentially one guy with a computer. how, in fact, as we talk about media shield laws, with the growing number of people that call themselves journalists, how will you define what the media is, going forward? who was courted to be credential and these folks? -- who was going to be credential and these folks -- who is one to be providing these folks with credentials? that is a discussion that we have to have, considering future interaction. i guess that would leave you with another example. one man was indicted in boston and he had been a blogger for most of the year. he would to be a part of all qaeda and ultimately return home. could he be considered a member of the media, going forward? i just want to speak about going forward when we talk about legislation. who will be defining this? >> most of my proposals at a national security exemption. -- pat and national security exemption. we need to start with -- have a national security exemption. we need to start with defining what the national media is. if you haven't read that, start there. it is a very interesting thing. i was on a panel where i found out it is harder to moderate that it is to sit and tell stories. we were on a panel with patrick fitzgerald. he had a wonderful story about gains in chicago and one of the gangs poverty figure out -- one of the gains cleverly figured out how to hijack a low-power christian radio station. if you would to a certain part of the city, all of a sudden, got disappears and there is a voice that comes over and tells you that the cops are over here and at our game is here and there is a group of us over here and there are drugs being sold over here. the authorities were trying to figure out if they were media or not. dave will always come up with something. >> -- they will always come up with something 3 >> -- something. >> one guy described himself as an archivist and people kicked over newspaper boxes and some how, a police car was set on fire. since part of the police car was paid for with federal money, the charges were brought up in federal court. he spent a good time in prison. there does have to be some incorporation of some new media and i do not know what the corporation would be -- the corporation would be. -- the incorporation would be. >> i think there needs to be some accommodation for new media. >> a reporter that was a bald on the other side of the judy miller case had a more difficult question. the reporters want one thing and what happens to the reporters after they go to jail, they usually got a better job when they got out people knew who they were -- got out. people do they were. assuming that they are responsible for your not having turned it over, it becomes a different kind of a problem. >> i just found out the name of that blotter -- blogger. joshed smith. >> it seems to me of that it is structural, whether we are talking about the fact that it affects the wall street journal. in regard to what you cover, one question that comes to mind, does it make any difference at all that barack obama is president with regard to your getting any information, or is it, in fact, the truth that we are talking about more structural problems so that when you talk about the government, it really does not matter. it does not matter who the president is. it does not matter to the secretary of defense is. there is something that is giant, called the government. does it really matter who the chief justice is? i am curious to know if the election last year made any difference at all to the ease with which to conduct your job? >> not nearly as much as you think. the first full day that obama was in office, he signed his transparency order to fulfil the promise that this would be the most transparent administration in american history. that was followed a few months later by a memorandum that changed this the and -- of the standards for me -- standards of the freedom of information act so that you have to show that the government had to have foreseeable harm to withhold. i do not see any significant changes as a result of that order. freedom of information's act requests are still held up. they were largely cosmetic moves. core issues that were of great controversy under the bush administration such as state secrets and that is where the obama people have come down pretty much identical where the bush people were. the classic example of that was last summer. the obama/holder justice department was withholding the fbi dictating interview. you would faint that this would be a no-brainer. these sorts of bits of affirmation have been released before. -- information have been released before. yet, there was day lawyers for the justice department working for eric holder and arguing that this document have to be withheld under folia -- foia. explain to me but the damage would be in this closed case that had no possible implications for on going law enforcement proceedings, and they came up with this argument that future white house officials might be chilled from talking to the fbi because they might get ridiculed by late- night comics like john stuart. this was their standard for not letting loose the document that showed how far the people would go to protect their positions, even when officials at the top proclaimed a new standard. >> another example, last spring, there was the big debate over the release of the opinion of where they ultimately decided that they put the memos out. the thinking was that one should be classified memos, then there was going to be a flood of declassification about other aspects regarding the cia detention program. once you say that the memos are not classified, how do you classify other things? they have drawn a line and have argued in court that the memos were a different case and all the operational traffic, nothing else has come out. there was a long and drawn after the memos and so, the predictions that we would have a flood of information about that program have not come out. >> obama raised expectations by his rhetoric campaign is that his administration would be more forthcoming and more transparent. he has set up this declassification center, but the jury is still out as to whether it will be classified significant documents. -- it will de-classi . significant documents. they wholeheartedly embraced the expiring patriot act. the trend was one of continuity from the past administration because towards the end of the bush administration, the most objectionable programs had already been softened. i think that that also reflects that, politics aside, there are institutional prerogatives at the agency will, whether you are talking the cia, the fbi or those that transcended party. there were civil servants and bureaucrats who had a vested interests in keeping policies going and programs going and secrets going. >> a student said that obama had an expansive view of executive power. if you look at what he proposed during the campaign, there are some modifications to it. they're actually has not been that much of a discontinuity. it has certainly been a discontinuity in terms of if you were looking at the emotional tone of what he said he would do. i do think that there have been two changes. one is that the obama administration feels compelled to justify some of these continuities. when he upheld the state secrets privilege, it would make an argument as to why they would disclose that. i do not think that there is the institutional prerogatives of the executive decisions to determine what information should be deemed to national security information and then the mechanisms by which to protect which obama seems to appear to -- and here to -- adhere to, they do not seem to have to hear to the basic institutional prerogatives. that does not change anything that anybody has said on this panel. vice president biden does not have the personality of vice- president cheney. nor does he have the desire to keep the reasons for policy decisions secret. i think that we have a transparent sense of what happened during the afghanistan policy that they had, i think that is a great thing for the country. we saw this debate played out in real time. not to say that anything might not be true, but i think there are different dimensions to it that are different. i will make the caveat which will make what i said completely irrelevant, but i did not cover these issues. i covered politics. it is quite policy that i have absolutely no idea what i am talking about. [laughter] >> this audience has been terrific. this is the end >> i would suggest that "new york times" may be pricing a policy in massachusetts but is not pricing what will eventually be a state based exchange in kansas. the law is set up in a way that kansas will have an opportunity, if they choose to put together a state based exchange to have the policies and programs be state based. it doesn't import the mandates from massachusetts an impose they will on kansas. it is the law of the state of kansas. so i haven't read theç article but the state based exchanges i would suggest will make it much more affordable for those in the individual market or small group market to have affordable care because they currently don't have the bargaining power and they are squeezed and priced out of the market. >> i will submit that article for the record, mr. chairman, if it is ok with you. while i'm not a lawyer -- >> i'm not either. >> i'm aware the supreme court has declared unconstitutional many federal laws that have individual mandates but the new healthcare law has a provision that appears to mandate each individual in the united states must have some form of healthcare insurance. regardless of the lessons we learned in massachusetts and new york with respect to individual mandates, what makes this administration think it can constitutionally mandate that every american must buy health had insurance? there appears to be a fairly large segment of the population that chooses not to buy health insurance even though they can afford it. this is a basic issue of liberty and i don't like decide ing ing purchase a house or rather to rent. what is it that we think we can impose on the american people and do you think it will survive a constitutional test? >> i'm also not a lawyer, but i have discussed the constitutional challenges with both our legal team and the legal team at the justice department who feel that the commerce clause gives strong constitutional basis for the personal responsibility section of this bill. as you know, when governor romney signed the paste law he felt a critical piece of expanding health coverage was personal responsibility, that those who could afford to purchase coverage would do so, and if they needed assistance that the state in that instance and in our instance the federal government would provide that assistance and there would be a waiver for those that couldn't afford it. it was the framework we used to put together the affordable care act and i think at least the lawyers will debate this in the courtroom, but i'm convinced that it does stand on strong constitutional grounds. >> thank you, mr. chairman. >> throughout the debate one of my highest priorities was to enable the federal government to better track and prevent premium increases for consumers. one of the provisions in the new law involves medical loss ratio requiring insurance to suspend at least 80% of premiums on healthcare services. this will be a great benefit to those that can't continue to pay skyrocketing premiums. it includes a host of other cost control measures including allowing exchanges to borrow access to insurers with up ream premiumç increases. i found in my district i had countless meetings with large employees, small employees, individuals, hospitals, doctors, and i cannot tell you how many people talked about their rates being doubled in the last five yea years. so, we have to do something about this in this bill. if you could share with us, how does the budget request enable h.h.s. to police insurance and protect consumers from abusive practices? and, more generally, are there any changes to the budget request that are necessary now that healthcare reform has been signed into law? first let's talk specifically about the medical loss ratio, then whatever time is remaining i would appreciate. >> the medical loss ratio, congresswom congresswoman, is part of the affordable care act. i'm a former insurance commissioner and i'm familiar with looking at the data that will be requested so we have already reached out to the national association of insurance commissioners to, as suggested by the law, have them help to frame the definitions that are used as part of the formula for the loss ratio. i have actually reached out to my former colleagues, governors across the country, to remind them that in some states there's the full range of rate review authority and in other states they are missing big pieces, like california and others who found themselves in a situation where they do not have prior approval of rate increases to remind them thatñr that may be good thing to address in their legislative session.ç so, we are aggressively putting together the framework for a review of medical loss ratios and working in close connection with the state insuranceçç commissioners and governors to do just that. i think that our budget, what we have done, congresswoman, as part of the implementation of the affordable care act is stand up a new office of consumer information and insurance ov oversight that is going to be charged with not only implementing the medical loss ratio standards but a whole host of the market conduct standards for insurance companies and working very closely with the state offices. >> before we get to the next question, from your experience -- and you interact, i know, with other state commissioners before you took on these responsibilities -- are there any states that are actually monitoring this issue effectively now? i appreciate the fact that you said you have been meeting with the staete commissions of insurance. are there any states that do it effectively? >> i think there are. there are some models out there that we look at very closely. again, the state laws vary, so some states have what they call prior approval. before a company can impose a rate increase they have to submit actuarial data to the department, have it reviewed, look at administrative costs, overhead costs, c.e.o. salaries, and what portion of the premiums they are paying out in health benefits. others have file and use where the company actually notices you that you have a rate increase and files it with the department. and some don't even have that. soç there is a wide range of oversight. we are very hopeful that we can -- this is not, as you know, a federal takeover of anything. it is really a state based insurance regulatory system that stays that. but we are working very hard with the states to remind them that this responsibility is theirs. i actually went to the health insurers and asked that companies submit to our office at a minimum their actuarial information of what their overhead costs are, what their benefit payouts are so we can at least make it transparent to the american public. so far we have not had a terribly robust response but i'm hoping that we will. >> i look to your keeping us up to date on this issue. because from my perspective and many of my colleagues, we were moved to pass this legislation because, frankly, everybody from small business to large business was just getting rate increases. myç time is up and i look forwd to continuing to hear from you and getting this information. thank you, mr. chairman. >> mr. lewis. >> all of us face the same thing but you are in a special hot seat. i would like to talk about medical errors a bit and medicare. before getting to that, as we have gone through this debate the last year itç has become vy apparent to any observerç who s looked closely that the key players on the majority side -- theç president, the speaker, t speaker's closest advisor, mr. miller of oakland, indeed henry waxman -- have been support active of a single payer system. i know that is not the bill we reduced -- produced but it lays the foundation for exchanges to be more than state base bud federal dominated. and it concerns me a lot that we ignore that. would you respond to you and your office's view of a single payer system at the federal level? >> i would be glad to. i think from the outset of this discussion there were certainly those in the house and senate who favored a single payer system and felt that that was by far the preferable option from the beginning. the president made it clear he did not, in spite of fact that he had, in years in the legislature and even when he came to the united statesç senate, talked about that as an option that would be ideal, the more he looked at the situation with 180 million americans having insurance coverage that was preferable to them and they liked, felt that what we needed to do was build on the current system. that is really the structure that the bill took from the outset in spite of,ç i think, e disappointment of some in the caucuses that would have preferred to dismantle the th d third-party payer system. states put together exchanges as a single state or in a multistate areaç if that is wh they choose. we provide technical assistance to the states to do that, and even though the exchanges are not -- the timetable for exchanges doesn't begin until 2014, we intend starting next year to begin very robust discussions so we don't wait until the last minute and have states in a situation where they can't do this. we have already had lots of positive discussions and states are very eager to do çthis. i think it will very much be a state based program. and particularly, congressman, it is not to dismantle what is in place right now. it is really to replace the market forç self-employed americans, many of whom cannot find affordable coverage, don't have any leverage. a lot of mall business owners who -- small business owners that find them in that situation. >> taking you to medical errors you suggest you want to at least model some evaluation of medical errors to see how we can improve on that pattern within the healthcare delivery system. might i suggest one of the major federal medical healthcare delivery systems lies within our military? there is plenty of evidence there is rampant across this system an error based system ofç delivery. i would suggest you might start there and help us evaluate what is going on in that medical care delivery system that is supposedly serving the most important servants in our society, the men and women who fought for this country. a huge problem there. >> i'm sorry, i want to understand what you are saying, congressman. we have begun discussions with not only the v.a. but the department of defense on their system. you are suggesting there is a rampant medical errors within the healthcare system for -- >> there is evidence at the highest levels that system deliveries at best produce a lot more errors thanç the norm. and we might start that examination right there. >> well, i think that is a good point and i will follow up on that. thank you. >> one of the president's major promises was that if you like your healthcare you can keep it. yet, to pay for the new healthcare plan the law, it appears, would cutç away a maj medicare advantage by more than $130 billion. i have 50,000 seniors plus in my district who enjoy medicare and they are concerned about what the proposed cuts might do to that service and existingç delivery. what can my seniors expect relative to implementing this program? >> i think that there is a provision, as you know, as part of the law that over a decade a portion of the overpayment to the medicare advantage plans will gradually be phased out. there are about 400 companies right now offering about 1,100 plans throughout the company. about 11.5 million seniors take advantage of the plans. we have just actually put out the 2011 medicare advantage updates, which will have the same rate payments for 2011 as they did for 2010ç. there will be a robust array of choices for medicare recipients as there are right now. i don't think there's any question that we are going to begin to pay more attention and collect more data, and the c.m. sfp c.m.s. on medical outcomes for looking at not only the fee for service side of medicare but the medicare advantage side of medicare to make sure that, if enhanced payments are going out the door, it is really for a higher quality health outcome and we know bundled care produces that, medical home models produces that, and there are a number of perhaps that are eager to engage in that. but i think the misinformation to seniors about the fact medicare advantage is not going to be a choice is just wrong. we anticipate that there will be no shortage of choices of medicare advantage plans throughout the country. >> thank you, mr. chairman. i must say, mr. chairman, what you just mentioned is a major stumble i stumbling block. but the greatest stumbling block is when the average family 25 to 45 finds a mandate with the i.r.s. looking over their shoulder that they must start putting money into a future for some future service delivery. >> i would say the greatest stumbling block is when people with insurance have to pay $1,000ç a year to subsidize people that don't have it because we didn't have until now a program like this. mrs. lee. >> thank you, mr. chairman. let me thank you for your leadership in helping to move the historic healthcare reform bill forward, for your steady leadership and voice and your experience. and also for those of us who were adamant about a public option in terms of keeping costs and holding insurance companies accountable. we are counting on you to make sure that that happens, short of having a public option. so, thank you very much for understanding how important that is. >> a number of us were adamant addressing racial disparities. i would like you to elaborate on how this budget supports the goal of diversity in the health professions through recruitment and training, how you increased diversity at n.i.h. institutions and researchers ensuring racial and ethnic minorities benefit from any new innovative health research at n.i.h. also in terms of the support of the minority medical colleges, the targeted support to help eliminate these disparities within communities where we see them the most. so, in this budget i want to see how you are shaping ççthis. i know this year the office of minority health, through the national partnership i think it is called action to end health disparity because they produced a draft report national plan of action on disparity. i want to see where you are there. secondly, national aid strategy. current budget allocation, who will lead the implementation of the national aid strategy. and what part of the current budget allocation -- i think it is $70 million -- will go to the c.d.c. dedicated to the hiv/aids strategy. thirdly, let me ask you about nursing. i had a long conversation with the dean of the nursing school in oakland and she indicated just in the bay area 40% of all new nursing graduates since october of 2008 have yet to find a job, yet i thought there was a nursing shortage in our country. i spent a lot of time with many in hospitals. my mother is 85 and my sister has multiple sclerosis and these are very good nurses, but we are always being treated by traveling nurses, nurses who have retired and come to the hospitals to work because i'm told there is a shortage. yet now the dean of the nursing school says nurses can't find a job. i would like to get some sense of what you think is going on out there and what i can do, what we can do to ensure qualified nurses are being hired. if i have any more time, i will ask more questions. but please respond to them. thank you again and good to see you. >> thank you, congresswoman. i will try to hit the high points on the issues you raised. first, health disparities is, i think, a glaring failure of the health delivery system over the years and while our department has done a fairly decent job documenting health disparities, there has not been a very good strategy to actually reduce our eliminate health disparities. so, the national actual plan you referred to is really the first time since 1985 that there will be a secretarial level plan addressing health disparities. it is one that i take very serious seriously. it is in draft form right now. we look forward to having a chance to preview it with you and work on it. i don't think any question passage of the affordable care act is one of the most important steps we can make toward closing the gap over and over. it has been identified the lack of insurance and access to affordable healthcare is one of the underlying causes of health disparity. so a big step was made. our budget will actually build on that effort in a number of ways. not only with the office of minority health focus with a strategic road map on this national plan. and we see it not only within our department but across government agency efforts where health is impacted by neighborhoods, by food availability, by the air you breathe. there are a lot of things that actually add or subtract from people's health. so we see this as a governmentwide effort. we do have additional resources in the 2011 budget that look at recruitment of health providers from minority communities to make sure that we have not only people serving in under served areas but minority providers, nurses, doctors, health technicians, mental health professionals. as you know, the affordable care act made an institute at the national institutes of health of the health disparities initiative and i think it raises it to a level where it will have serious strategic focus and attention. so, there are a full host of assets coming together in a way that hasn't been organized in our department. and we look forward -- i know this has been not only a cause that you have taken very seriously, but your fellow t tricaucus members have been focused on it for years and i look forward to working with you as we address these gaps and underlying health causes. i would suggest also that the increased footprint for the community health centers, which actually started in the recovery act and are again targeted to the underserved areas as well as the efforts in wellness and preservation grants will also help to close this gap. i can't respond very well to the nursing shortage situation that you talked about because that is the first time i have ever heard of nurses not being snapped up immediately to be hired. i hear the other side of the story over and over again, that people need more nurses in the pipeline and that is exactly what we have been doing is trying to fill that workforce pipeline with more scholarships, more increases to the health service corps. more people in underserved areas. so i need to follow up that. and finally, in the aids area, there is a national aids plan that is currently being formulated. it is not finalized. as you know president obama identified while we had a very robust international hiv/aids strategy we had kind of lost the attention and focus at the national level. we have already launched under c.d.c. an outreach program on testing and particularly identified some of the most vulnerable and growing communities that were beginning to interact with using social networking. we look forward to the strategic plan, which will be led by ambassador goosby and others. there is a new aids council that will have a national and international focus and we will be intermately working with them. >> thank you, mr. chairman. temporary high risk in montana, i notice in the appropriations a $5 billion amount was taken to pay for the high risk rules around the country but c.m.s. is suggesting the money will run out in 2011 and 2012 and they don't have to opinion place until 2014. why the shortfall, or why the anticipated shortfall and are there other areas you it is coming in overbudget already? >> congressman, we don't know exactly how many people will be able to be enrolled in the high risk pool. a lot of states offer high risk pools. >> which is one of the reasons we wondered whyç we did this. if we had that in place why supplant it with something created by the federal government to do something already in place. >> it is a totally voluntary program first of all. second it won't be created by the federal government. if montana chooses to set up what is a parallel pool, the money that is allocated in the affordable care act is to subsidize rates that don't rise above 100%. in montana they are well over 100% of the market right now and it makes it very unaffordable for lots of folks. >> my question is you asked for $5 billion, you got it and c.m.s. is already anticipating it will not last through 2011 or 2012 and high risk pools are not to be in place by 2014. a shortfall, an overexpenditure. how you going to deal with it? will you limit access? >> sir, this is not a federal program. if montana chooses to participate, they will have an allocated set of resources which helps subsidize care for montanans who currently are uninsured and uninsurable. if they choose not to participate, that is a choice that the state will make. >> let's go back to the question. the question was the legislation created high risk pools or the opportunity to create a high risk pool by 2014. >> no, sir. right now. this is the bridge strategy to a new market in 2014, not in 2014. >> that's correct. but by 2014 an alternative structure needs to be in place. >> the exchanges. >> correct. but if the exchanges are in place in 2014 but you are using montana and other states' temporary pool and you appropriated $5 billion and it is not going to make it to 2014, you are going to have to come back to this appropriations committee and ask for more money. you have already anticipated it will cost more than you told us it was going to in asking the legislation be passed in the first place. >> currently the federal government pays a fraction of the state's high risk pool and puts about $50 million into an overall plan. this is an attempt to provide a safety net coverage if the money actually is going to have a shortfall -- >> madame secretary, that doesn't answer the question of the shortfall. i understand the bridge. i understand that you are going to cooperate or participate or help the state. but you said it was going to cost $5 billion. your anticipated expenditure. and it is not. >> we don't know what it is going to cost. >> so you disagree with c.m.s.? >> we don't know how many states want to participate. we put out a letter to governors. i talked to my former colleagues yesterday. we will by april 30 have some idea -- we really don't know at this point, sir. >> the second line of questioning i would like to go down the path, in the stimulus package the law certainly says you can't lobby. >> correct. >> that is on information from cnn, state of new york obesity, educate leaders and decision makers about trans-fat. this is $3 million grant. santa clara, california, advocating for an increased statewide tobacco tax. chicago tax increase at city and count. iowa department of health $3.3. that sounds like lobbying. >> congressman, i read the same information from the same news source. i canç assureç you that we ha- we will follow to the letter of the law the federal law which prohibits federal funds and has not just in the recovery act but consistently prohibited lobbying with federal çdollars. we will track that very carefully. we have notified a whole host of folks that that is the law of the land. that was part of the grant application and will continue be part of the monitoring. >> those are all quotes from the grant applications in the first place. >> a lot of the applicants have a whole host of strategies that they employ and have employed historically and will continue to employ. we are funding programs that are not lobbying programs. they are actual prevention -- >> butç your oversight missed in the initial grant application. that had those exact quotes in it. >> they have been notified that there will be -- there's an absolute prohibition for using any federal funding for lobbying and we will follow that carefully. >> thank you. thank you, mr. chairman. >> welcome, madame secretary. last year the american recovery and reinvestment act made $650 million in prevention and wellness funding well for chronic disease prevention and management. this year when congress passed the affordable care act it included a $15 billion prevention in public health fund of which $500 million is, i believe, available this year. i understand they are not reconvicted to chronic diseases but meant to fund the entire spectrum of public health efforts. i have been told your office is currently working on a system to distribute the funds this year. however, there seems to be significant concern in the infectious disease community that in an effort to obligate the $500 million by september 30 of this year the department will fund only existing grant applications for the area of chronic prevention grants and infectious disease programs will once again receive no funding. can you please outline how you plan to allocate these funds and whether you will include new applications for prevention funds to target infectious diseases such as hiv/aids, viral hepatitis, sexually transmitted diseases, touche tuberculosis many of which are at crisis levels in many communities, and what strategies is your department undertaking to address these infectious disease disparities in minority communities? >> congresswoman, i would suggest that at this point, as you have identified, conversations are going on with members of the house and senate about the strategies for allocating these funds. so, no decisions have been made at this point about either using traditional applications or not. but we absolutely want that kind of input and look forward to working with you on a plan. i think that the effort will be to actually build on -- as you know, the investment in the ar -- arra funds was a first time investment and focused at least on the community grant applications on two under slowing causes of chronic disease, which were tobacco cessation and obesity. this is likely to be a broader area. there lots of ideas and good strategies about how to use this. we are looking carefully at scientific data and evidence based programs. i can guarantee you that will be one of the guiding lights is what has been demonstrated to work. but i would say that discussion is very much under way and we appreciate your input. >> so, there is -- it is still open with regard to funding infectious disease? >> yes. >> as you are aware, the united states spends more on maternity care than any other country in the world. however, we rank 41st in ma term mortality. and 30th in infant mortality. we know there's an extensive body of best evidence practices, our healthcare providers seem to be not following that research. for example, despite healthy people goals of reducing cesarean benefit to 15% the united states has a 31.8% cesarean section rate. given the risks associated with medically un tphnecessary cesar and the srord cost associate -- the extraordinary cost associated with cesarean births is the administration doing anything to refine our care system to support the best and most cost effective evidence based care to reduce the rate of c-sections? >> i'm not sure i can speak with any specificity about what actions are currently being taken in dialogue with providers about the c-section rate beyond just publishing the data and highlighting the data. i can tell you that our office of women's health is very focused on maternal and child health issues and, frankly, what are pretty dismal health result as you suggest, high expenditure and not trick ical-- not terrifically good result. i think the affordable care act takes a step to get affordable prenatal care to pregnant women. >> i'm sorry to interrupt but i did want to know whether or not, since the new law requires medicare to cover care provided in all free-standing birth centers at a cost of $6,000 less, is there any consideration to increase the availability of licensed birthing centers across the country? is that being looked at? >> i can't answer that but i will look into it. >> thank u. >> thank you, mr. chairman and madame secretary. i have two questions. the louisiana delegation is supporting a piece of legislation to address medicaid reimbursements or medicaid costs. governor skwreupb-- governor un is supporting the legislation and they are in a legislative session today dealing with the shortfall there of half a billion dollars. my question is, what is being done to prevent states like louisiana, who were unfairly, when you look at the formula because we got a lot of money into the state of louisiana as recovering from the hurricanes, louisiana was looked at as being a state that was financially better off than they really are. so, what are we doing to prevent louisiana or any other state like yours that received financial help from appearing to be wealthier than they really are and therefore suffering because of the medicaid? >> congressman, we have spent a good deal of taoeuime with not your state health officials, medicaid director, the mayor-elect of new orleans and others on this situation. and, frankly, one of the reasons i think there is now a legislative discussion is because the law is pretty clear that we don't have administrative flexibility to change the calendar years for which the income level is calculated and that is really the swaeuituation, is when the t again, what the income level is and how it was calculated. but we are working very closely with them. i'm well aware of the anomaly that income appeared to go very high because half the population was frankly gone and not count and probably inaccurately reflects what is the true medical count. and if we can have a legislative fix we will try to move it very quickly. but we have our hands tied in terms of what administratively we can do for this situation. but i think it is worth looking at, as you suggested, not only louisiana but what happens post-disaster in an area where federal funding may come in as an aid after the fact but then the result is a calculation that isn't a very accurate picture of what the financial wherewithal is. >> thank you. the chairman earlier said something about a meeting that we had a few weeks ago about fraud. during that meeting i asked the question, we heard all kind of reports about the numbers of physicians and other healthcare providers that were using sometimes information obtained from the inside to defraud the taxpayers. i asked the question about the number of individuals on the inside that might have been found doing something wrong. and again i'm not pointing fingers but i find it almost impossible to believe that there are numbers of individuals on the outside committing fraud at the numbers that we are hearing about without getting some help from the inside. when we talk about organize cri crime, and that term was mentioned, organized means at least two, you know? you can't have organized crime with one. so, i asked the question -- i have not gotten an answer -- of staff members to try to find out if there are any individuals on the inside of any of the departments at all levels who have been found guilty of helping those on the outside. i can't get an answer. there is no answer or either they won't give it to us. >> well, congressman, i can tell you i'm not aware -- and i will make sure we get this data and get it right back to you -- i'm not aware, if you are talking about state and federal employees who have been charged and found guilty. i do know if inside means providers and not necessarily just doctors but so-called equipment providers, and home health providers, there are dozens and dozens of insiders in that instance who have been charged and prosecuted, which is really the only way that we would be able to document if they have been found and i can get that information to you. that is the kind of thing that i think that the new fraud effort is attempting to crack down on. it is people who pretend to be providers if you will, set up sham operations, bill, but they are not necessarily part of organized crime. they are just operating as insiders but, really, conducting fraudulent activities. but well circle back and get you that information. >> thank you, sir. >> thank you, mr. chairman. >> i know the department unfortunately i have to report minnesota found two internal problems with fraud. so, if you do internal audits i'm sad to report that there were a few people in minnesota involved in it. i'm happy that they got caught. i would like first to commend the chairman for his ongoing leadership in fighting for the best value in quality healthcare and just leaves a lot of hearings that you have beforeç and the hearing weç have today. i had like to congratulate you on the passage of the health reform bill. your work and the work of the administration were key to ensuring healthcare reform became a reality. i believe that the current medicare payment system is deeply flawed and too many hospitals and providers shoulder the burden of unfair medicare reimbursements for high quality low cost care they deliver, my state being one. i look forward to working with you as youç convene the nation summit on geographic validation, cost, access and value in healthcare this year. andç the timing implications f some of the fact finding that you are looking atç andç for implement station of change i will submit some of those questions for the record. i would like to spend my remaining time talking about hospital inquired infections. we are here to learn how to work for effectively with you to improve the healthcareç for al americans. hospital acquired infections contributed almost 100,enthusiastic deaths. a recent report conclude they merited urgent ó8(urjz. we know that hospital infections add $28 billion to $33 billion to national health care cost and this is a serious concern because not only are we paying the costs but there are patients paying for these mistakes with their lives. h.h.s. has set out a goal to reduce hospital acquired infections by 10% to 20% in two years and 50% within 10. but we are far from reaching that goal. we know most of these infections are preventible through low cost techniques. there is a "new york times" article that talks about how we have had remarkable progress in reducing infectionç rates but w many ofç the hospitals have no yet worked to overcome the infection rates because they are in a transmedical culture that is not changing. my state has worked to lower infections and i know others are doing that as well. as you have examples at your department on howç we can redu infection rates. but the report also points out that infection rates have gone up ç8%. here is my question. is the 8% increase because of better reporting, whether voluntary or mandatory? because youçç can't address a problem until you face the fact that the problem exists. or what are some of the obstacles to addressing the issue? does the agency need this committee or the policy committee to work more closely with you to address this public healthcare concern moving forward? >> first of all, congresswoman, i think your target of concern is one that is aç huge issue a not only a huge cost issue but a huge safety issue. i know the chairman has been working with you in focus like a laser beam on this. the notion that we have 100,000 deaths a year fromçç what hap to people when they are in the hospital, not what brought them in the first çplace,ç is, fra, totally unacceptable. and hundreds of thousands more in just the high cost, longer care strategies and lingering diseases. so, it is a very serious issue. we know what works. it has been demonstrated and proven. it has never been taken to scale. so i think a couple of things are happening simultaneously. first, the notion of increases, i would say, is part of better reporting. it also is a snapshot of the past. we are hopeful that more current data gives some more encouraging signs and this focus by the department, by this committee through the recovery act and through the affordable care act and our buckets is -- budgets is relatively recent. it is a question of focus by hospitals. you have required that all hospitals have to report, which is a big step forward. and that reporting will be much more transparent to consumers and others, which is again a big step forward. third, we are putting real resources both to states for more frequent inspections and the hospital systems to encourage the adoption of the strategies we know work. fourth is the electronic medical records. i was in a hospital in cincinnati two weeks ago, a children's hospital that does some of the most complicated surgeries on infants and even prenatal allly that i have ever seen. they have embedded in their electronic records system the checklist we know worked to rules hospital infections. they have gone 1,000 days without any safety concern. it is a great example of what meaningful use in electronic records system can do which is em-- embed the safety checklist and if you can do it in that environment we can do it everywhere. so i think there are resources coming together but it is something we take very seriously and i think it is not only a huge cost but we're killing people by our healthcare system. >> thank you, mr. chairman. madame secretary, thank you for being here today. as i talk to hospitals in my district and it is a pretty rural district, a lot of small town, medicare, medicaid intensive facilities, most of them are expecting -- and this is not through your actions or the healthcare bill. their medicare reimbursement rates are being cut, going down. they look on the medicaid new population that they will be getting under the healthcare bill is hraorpblg will will -- largely a break-even deal for them. and they are very worried about what is going to happen to the private provider part of reimbursement. because the point has been made here earlier private insurance subsidizes the uninsured but it subsidizes medicare and medicaid because those programs don't break even on cost. so they are looking at their future and wondering where the dollars will come from for them to keep their doors open. then the people in the larger cities wonder what happens to the smaller hospitals that close and that population base is moved into their facility. i would like you to walk through how you see hospital reimbursement rate developing over the course as you phase in the new healthcare çbill. >> congressman, i think that is a great question. whether it is in rural areas, in your district or in a state like kansas or urban areas, i think every hospital administrator who i have talked to in the last 10 years has seen their uncompensated care rate rise. so, there is currently a population with no payment stream at all. ]5ñáreamser streams. i think one of the featuresç o the affordable care act is to have a payment stream arguably under every patient whoç comes through the door. it is one of the reasons a lot of the hospital systems work carefully us on the framework of health reform. i do think that there also is an effort where the kind of bundled care strategies -- hospital providers are very eager to have a payment system which actually looks at ways that they can be more appropriately compensated for keeping people out of the hospital right now. the only way now is if somebody comes back into the hospital and the sorts of embedded directional changes in the delivery system for health homes and bundled care and accountable care organizations actually have, i think, some huge advantages for hospital systems to have a more appropriate reimbursement system and actually keep people healthier in the long term. but i think there is a notion that wae hopefully will have a care system that more appropriately -- i would say the third piece of the puzzle is a lot of hospitals now, particularly through emergency rooms, are delivering care which could much more effectively be delivered in a primary care setting, in a community health center, in a variety of areas. they have begun to work on tragedies to triage that so they don't have the robust preventive care and i think that is part of the new strategy. >> a lot of my facilities are concerned with on the private end of it where at the make the money to reinvest in technology and facilities. they don't make that off medicare or medicaid. theyç don't expect to make it going forward so they are reallç out the private market here and won't have the money they need to give patients the best service that they can give. >> i think with the exchange opportunities the private market, i would suggest, may be stronger. what is happening right now and has happened over the last five years certainly is more and more small employers have dropped their private coverage because they can't any longer pay the premium. a lot of individuals are -- lost insurance when they lost jobs but the restabilization of a private marketplace with larger purchasing pools but stabilizing that coverage will be good news. >> i hope so.ç i thinkç that is aç point wor making though because a lot of my friends who favor the public option forget where the money comes from that allows healthcare to be delivered and it is heavily from the private sector. you overpay if you are on private insurance already.ç we know that. but that supports medicare, medicaidç and, frankly, the ne healthcare insurance bill as well. i would be very careful about killing the goose that has provided the eggs for everybody else. >> and as you may know, of the $ 32 million or soçç estimated enrollees in a health insurance system, the majority of those individuals will be in the private market, will not be in the public market. >> thank you, mr. chairman. >> welcome, madame secretary. to pick up with the last comment, the additional 32 million that will be added to the population, would that tend to drive the cost down across the board in terms of insurance premiums if we have the other things in place like the antitrust provision and a public option? >> well, congressman, i think what is anticipated to cost less is, first of all, the market right now is pretty fragmented. so, if you are an individual buying your own coverage or a small business owner, one health incident, one cancer survivor, one heart attack, puts you in a very expensive category. pooling that risk into an exchan exchange, a. bigger purchasing pool, helps balance the cost and one of the reasons cost will come down. hopefully a number of the underlaying features that lower the overall healthcare cost also are impactful in terms of the health insurance cost. >> it seems to me that is something we can work towardç d anticipate. we do know, though, if we don't do anything we have 47 million people without insurance and the costs continue to rise. in the last 18 months at least in california premiums have gone from 30% one kwraoyear to 38% t past i pastier in terms of premium increases in the late of the debate we had already.ç so, i'm not sure the word is arrogant butç it is pretty bol to do that while we are having a debate on the high cost of insurance insurance. i want to thank you for taking on this job. it is a massive job and i think it is a veryç complicated, complex job that you have. with y i'm working with you on this. i do note the state you come from isç a very active state a they are very vigorous folks, and i was pleased to see that the congress person did vote for the bill. and i think that in my own district, district 15, which is silicon valley, which has probably the highest per capita of postgraduate folks, probably the highest average income in this country, i had something like 70,000 folks uninsured. that is almost 10% of my population. doesn't mean they were unemployed but they were uninsured. a fellow who ran against me for office when i first ran, a young man, a good friend of mine, said that during the current situation he couldn't go into his business because his child has a preexisting condition and he saeid that we should go for it. it important for the country. what is important for the country is we know we have a viral hepatitis issue in america and globally and we know more americans have chronic viral hepatit hepatitis, there is more of an incidence of that than hiv/aids and the disease is 100 times more infectious than h.i.v. i'mç grateful for the presiden for requesting the increase in the 2011 appropriation budget. i'm glad that assistant secretary had begun two major inter agen interagency task forces on that issue and wore very appreciative of that activity.çç and i'm also aware there is about $500 million for prevention and wellness funds made available through this bill. but there is nothing that says how it will be spent. is there -- do you have any idea how your department will look at that and how it will be spent? >> congressman, i think that we are still seeking guidance from membersçç in the house and se about that 2010 appropriation for the prevention funds. we did invest both our 2010 and we have a spend plan for the 2011 -- i 19the 2009 and -- i mean the 2009 and 2010 prevention funds as part of the recovery act and we see this as an opportunity to amplify and look it other directions but those conversations are under way and we appreciate your feed pakistani. -- feedback. >> we will be be willing to do that. >> i@m9 to thanks you for your leadership in regard to the healthcare reform efforts. i think history will judge us well bringing a level of social justice to this we have not seen. one issue i mentioned before when you were hear that i have -- when were here that i have been dealing with the last few months and years is the issue of stress in our society. i think as we talk about healthcare reform and the technology and everything else that there is a growing body of evidence, not just in the area of healthcare, of mindfulness and contemplate actiive practic their benefits on reducing stress levels and allowing our body to heal itself. so as we move 30 million more into the system there will be more costs andening we have dealt with that and we need to, i think, pursue -- and mr. honda just mentioned prevention, and i know there will be a panel to evaluate what preventive measures actually work. i would like two eventually courage you on the -- i would like to encourage you somebody should be on the field of mindfulness.

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