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tv   Key Capitol Hill Hearings  CSPAN  February 3, 2016 4:00am-6:01am EST

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then you're doing all that work in a very abstract way. and our team was coming home from a meeting in sacramento where they agreed to make the changes and reflected on the fact that this is not a piece of technology, this is the way that we take care of kids who are at risk in our state. there are 475,000 reports of abuse and neglect of children in our state. and when the technology doesn't work to manage those cases, those kids have bad outcomes. >> absolutely. >> i think that is such an important point that you're making. the technology is solving an issue. that's the point we're all making. i know i have to go to our questions from our audience, but i do want to end on one quick thing. dan, what you said about democratizing, that's what brigade is about. democratizing democracy. so we thank you for doing that. >> that should be our tag line. >> democratizing democracy. i was going to put that in my original question, but i liked democracy as your start-up.
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thank you, guys. at this point, i'll turn it over to q & a from the audience. as you ask your question, a gentle reminder, please ask, if you have a panelist, please let us know who it is and please ask a question. thank you. >> okay, my question will be about database sets. my name's peter gisele, i work in a hospital laboratory, i'm not a computer geek. as a military veteran, i was interested in a bill that was in the congress a long time ago. my frustration is that 99% of the people i contact i never get feedback from. what i want to create is a website, a viewer easily available database that has database sets in it of like the members of congress, people in the executive branch, but also governors and that. but also academic professors so that i could, over my retirement years, contact these people and try to get feedback, but at least document on this website that contact has been attempted
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and no response has been given. database sets are very expensive and i just don't understand why the non-profits and the computer industry doesn't just generate these for all the different non-profits in the country. there's a company called leadership directory that provides it, but costs tens of thousands of dollars. >> the question being, you'd like to see that contact documented in a database? >> a database set itself is very expensive to produce. as a one-person campaign, i can't produce it. i would think that if they're created by various non-profits in the country, it would be shareable for everybody in the country. >> somebody want to take up open data sets? >> i'll take a stab. i heard two parts to your question they might be able to respond to. one is on the database of elected officials and who represents you. i think you're absolutely right. that data is not easily accessible enough. there's no definitive database of every elected official in the u.s. and there's no easy way to
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say here's who i am as a voter and show me all my reps and who they are and what they do. there are some good attempts and there are some groups working really hard on that. sunlight foundation, google civic api, maplight over in berkeley has been working on aspects of the problem for years now. those data sets are getting better. they still aren't where they need to be. you're absolutely right. i think the second part of the responsiveness of those reps, did they hear what you said and did it count? that's another piece that we're worried about. a lot of that comes down to incentives. i talk to a lot of elected officials who spend a ton of time and this is not a new story for anyone, a ton of time fund-raising, a ton of time talking to interest groups that represent a lot of money and/or votes in their district and have a lot less time to think about how to engage a wider audience and they're not frankly in a lot of ways that incentivized to do so. so we're hoping to aggregate votes and voters in a way and constituents, so that their opinions actually tied to the
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identity of someone who votes, can incentivize elected officials to spend more time with them. money and votes are fungible. they're figuring out a lot of time on how to get the money. if you could figure out how to get it to the voters, they would be incentivized to go spend time with them. but it's an unsolved problem at this point. there are some good people working on it. >> next question. >> my name's shayna, i'm a student and also an elusive millennial as you spoke of. for me, the flip side of the proliferation of social media is that a lot of my peers and young people feel like clicktivism and liking something on facebook is enough, and that's engaging with a cause. for me as someone who has a twitter and a website and has tried to praise technology, it's been difficult to see how social media can be used to sustain involvement and make sure that civic engagement goes past a social media presence.
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i'm wondering if you can speak a little bit to that. thank you. >> yeah, great question. just quickly, there's a huge amount of engagement online with millenials like shayna, posting articles, commenting on political topics. then when you ask millenials what are the most impactful things they do to help their community, it's actually offline, and/or giving money. volunteering, direct service in their community, where they can see the people they're serving or actually work on things with their hands. it's giving money where they have confidence that the money is going to be used to actually fund something that's impactful. so i do think there's a disconnect right now between the discourse in self-expression that maybe feels satisfying in the moment because you won that argument or you got three likes on the thing you posted. even if it's -- and it may be political, but you have to ask yourself what do those likes actually amount to and probably
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the answer is not much. and where millenials are saying they're most satisfied and most engaged which is offline, through volunteerism. i think there's a gap. unfortunately, i cited that stat of only 8% of millenials voting in the last california midterm. millenials just don't believe voting matters. that's a huge problem. that probably sounds like a depressing non-answer. i think part of the way you solve that, though, is -- this is a terrible word -- you gamify it, you make the data explicit. you show them they're not alone. you show them how many voters there are, how much the potential impact is. i'm wearing this thing which i got as a holiday present and it changes behavior. it's amazing. just tracking and making explicit how many hours i sleep, how many steps i take, how much water i drink, just making some data explicit and easy for me to understand and consume and these nudges to do things, has
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dramatically changed my behavior. i go for a walk after dinner. i try to go to bed earlier. it's not quite as simple in the civic space. but if this is the kind of technology that we're responsive to as consumers and younger people in particular, we're going to have to build those kinds of tools for the civic space. and there's been a huge underinvestment in that in silicon valley for a very long time. government's been the enemy. we don't want to deal with bureaucracy. that's not us. we're hip and cool and solve problems. they don't. jen speaks eloquently as to how to bridge that gap and why it's imperative that we do. >> and if i could just add, there's a particular opportunity that sort of bridges that sense of social media in digital competence with that sense of hands and working in your community. the code for america brigade, there are 44,000 people that
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participate in their local communities. they build technology for their city government, for their local community, and they are two of the most active communities here in san francisco and oakland. san francisco meets on wednesday nights at our office on ninth street. one of our sponsors, who is in the back for microsoft, who helps out with that community. and open oakland is also in city hall weekly. so it's activism that's digital that helps out in your community. >> that's wonderful, thank you. we have time for two more questions. we'll take the next one. >> my name's ruth shapiro, and right before i came here, i was watching the town hall with president obama about guns. and there seemed to be, in the audience, quite a few people who were very much galvanized by what i believe is completely untrue information about guns. so i think the underbelly, or the dark side of proliferation
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of information, is the proliferation of untrue and destructive information with isis recruitment being obviously way, you know, a worst case example of this. so i wonder if you can just discuss the fact that there's a lot of untrue destructive information out there, which people are organizing around and how do you deal with that. >> sure. i can take that. >> look, there are upsides and there are pros and cons to all things, right? and the dramatic democratization and proliferation of information has done great things for the world. but there are people who can use it in nefarious ways, isis being the most obvious example. there has been evil in the world before there was social media. there was prejudice before it. social media really allows people to express opinions they otherwise had in different ways. what it does do is allow people
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to confront opinions they would not otherwise ever see. now, you raised guns and guns is a very interesting one. because guns and climate change are two of the hardest issues to communicate on, because we don't live in this broadcast world where you just go to the news and everyone hears what you have to say. people are now communicating in networks and these networks are becoming, in many cases, more homogenous. so it becomes very hard for someone who is outside of that network to convince a bunch of people in a different network that climate change is real. or that actually no one's coming to take your guns, right? so that presents -- that is a challenge. now, i think that as we, as people learn and politicians learn how to better communicate in this area, you're going to have some more progress there. but i think social media is a tool that, i think, does way
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more good than bad. but we're going to have to sort of look and learn about how we can deal with, you know, these closed communications. i think it's worth noting the fact that people have facebook friends or twitter followers, who basically believe the same thing, is more of a symptom of something larger that's happening in society. offline it's happening too. it's the great sorting. people are hanging out and living with and going to school with people of the same opinion. so there are precincts in this country, in san francisco and new york, where mitt romney got zero votes. not a single person voted for mitt romney in that area. and there are precincts where barack obama got zero. not one person differed from their neighbors on that issue in a 51-49 country. so it always becomes easy for people in politics and the media to blame twitter and facebook,
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and it's made our politics uglier, more confusing, or now people are less informed than they were before. we got to think on bigger things, rather than just what the social media platform of the day is. >> and because of that point, we made a specific design decision on brigade, maybe it's background checks required for gun purchases, on what informed citizens do, they take a position, they agree or they disagree, but then they have an ability to leave rien and -- reason and the crowd has the ability to comment, to vet, to post more content. so we made a design decision to structure it as a debate with different perspectives. i would rather in the long run, have a crowd-sourced multi dimensional debate where truth gets created over time and can be revised and updated, more of a wikipedia model, than a kind of expert-driven, you know, encyclopaedia britannica model. the internet offers that, but
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it's going to require time and tools and social norms for that to work for everyone. >> if you haven't downloaded brigade, i encourage you to do it. i was an early user. i met with matt really early after i left the white house. we talked about it. it is a cool feeling when, because what happens is, you leave a reason, and if someone changes their mind because of your reason, you get a notification. so and so changed their mind because of what you wrote. that gives you a rewarding feeling. on the big issues like guns or taxes or women's health issues, maybe i'm not going to convince other people but in the course of like reading about some of the, you know, this is the first san francisco election i ever voted in this year and reading some of the back and forth on that, you hear really interesting arguments about things you wouldn't have otherwise thought of. so it's a totally interesting thing when you do the -- my
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first time of the million ballot initiatives here -- [ laughter ] -- incredibly helpful. >> welcome to california. i feel like you're talking to me. i've already said i'm going to download it. just kidding. >> i wasn't trying to be subtle. >> that was great. and with that, we'll go to our last question of the evening from the audience. >> it's interesting. i was going to ask about what you were talking about, which is the unintended consequence of technology actually helping polarize the nation more. i was going to compliment you on what you just mentioned at brigade, it's the only place where you see both points of view. my question is, what role do you see yourself having on actually using technology so we can graduate and use it as a way to work together? there's so much overlap on issues like immigration that different groups on the different sides agree on, but when you go into this world of
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sorting and dividing, i'm not going to work with that person because they're so evil, that even though we agree with each other, we're not going to work. and that's what's happening. so my question is, how important is that for you at brigade, and what are your thoughts about how to work on that? >> thanks for the question. i think in the long run, it's absolutely critical. our mission is to empower people to play an active role in their democracy through collective action. we want to help people build real influence. so discussion and getting informed and learning about yourself and where you stand on the issues and forming an opinion on things is a really important starting place. but we have a long way to go to figure out, to build the tools for people to take action and collaborate. jen mentioned brigade -- we both like that name. -- mentioned the code for america brigades, which are exactly that. those are people with a common vision for wanting to get something done. they have resources and tools,
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they use technology to meet offline and work together to build amazing things. similarly in the realm of policy and electoral politics, we want to connect new people to work together. i don't know which of my neighbors sadly, talking about local government, i have no idea which of my neighbors care about the same issues i care about. i wouldn't know where to begin to work with them. and finding ways to reconnect those people and give them tools to organize and get things done is absolutely the long-term vision. >> thank you. >> i think the other place is, we can connect on getting the policy that we think matches our " but particularly here in silicon valley, we can connect around the implementation of that policy. if you care about immigration, one of the things i was doing when health was doing their stuff, was working with citizenship and immigration and domestic policy council. that was when we still thought we would pass immigration reform at the legislative level. and we said, wow, if aca is vulnerable to being threatened
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by implementation, so is immigration. now, since then, many wonderful people have come from silicon valley to help the immigration -- the administrative things that have to happen if we're going to process many more people through. so there's common ground, i think, particularly in this community around getting the policies to actually work, using digital technology. >> absolutely agree. thank you for that. that was our last question. thank you for the audience, really appreciate it. before we close out, i want to go on to our informed tradition. the last question is for all the panelists. dan, start with you and work our way back this way. i would like to ask each of you, what are your 60-second ideas to change the world? so small. >> i had to go first on that one. obviously personal crowd fund-raising. >> obviously. >> yes. >> would you like to expand on that? [ laughter ] >> sure.
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i was trying to be efficient in silicon valley style and do it in ten seconds. i think the most important thing for changing the world is education. right? it's bringing more -- it's giving people the opportunity to reach their full potential. that can happen in a whole wide array of things. but people's fates are being determined at too young an age. start with early childhood, work your way to learning a specific skill set, that more than anything else, that's on the long arc of the world that will make our country a better place. >> agreed. jen? >> i guess i would say that i think if we all believed and held government accountable to it working for us and for the people that it needs to help, not just us, but people who need to rely on government more, we would live in a different world.
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we have a lower expectation, and i think the belief that it could be and the ability to help make it as effective as we need it to be is a powerful idea. it's not only about the delivery of government services which is where we focus at code for america, but it turns out that if we make the delivery of those government services work in the way that, say, uber works, then we get realtime data about what programs work and then government can work effectively, not just at the delivery level, but at the policy level. >> couldn't agree more. so far i like everything you guys have said. matt? >> i feel like i've been talking about that the whole time, probably selfishly, i'm sorry. i guess i'd just slightly reframe it as a better answer to shayna's question, which is that i want to live in a world where people take pride in having opinions and being civically
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engaged and doing things not just with their voice, but with their hands. and this is a sad statement on humanity, i point back to my health tracker. but i think we're going to have to measure those things and they're going to have to be recorded and it's going to be part of our civic identity online and part of our identity of who we are. but if more of our lives are moving online, my big idea is that being rooted in a community, having opinions, having a stake in society and contributing through my voice and my hands, making that accessible and making it something that's aspirational is the big idea and what we're trying to build. >> thank you. thanks so much. those were great answers. i'm so thrilled to be on stage with you tonight. can we just give our panelists a round of applause. [ applause ] thanks, guys.
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don't get up. don't move. thank you, everyone. is there still wine? no, i'm just kidding. i was going to send you guys to the wine. the detroit free press reports that the fbi is now investigating the contamination of flint's drinking water, which has left an unknown number of flint children and other residents poisoned by lead and resulted in state and federal emergency declarations. the house oversight and government reform committee holds a hearing. we have it live at 9:00 a.m. eastern here on c-span 3. our road to the white house coverage continues tomorrow from new hampshire. ohio governor john kasich's in manchester. that's live at 4:00 p.m.
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eastern. then former florida governor jeb bush. that's live at 6:00 p.m. eastern. we follow it with new jersey governor chris christie in milford at 6:30 on our companion network, c-span 2. new hampshire's first in the nation primary is on tuesday. >> the supreme court heard oral argument in heffernanv city of paterson, new jersey. the case looks at whether city officials violated the free speech rights of a police officer who was demoted after his superiors assumed he supported a challenger in the local mayor's race. this is an hour. >> argument in case 14-1280, heffernan versus city of paterson, new jersey. mr. frost? >> mr. chief justice and may it please the court, public employees have a right not to be demoted on patronage grounds.
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i does not matter if you are affiliated with a specific party or that you are non-affiliated. it does not matter if you are mistakenly perceived by your employer or supervisor that you are engaged in political association to be protected by the first amendment. >> how would you define the right at issue in this case? >> the issue here -- >> how would you define the right that your client wishes this court to vindicate? >> defining the right in that pursuant to elrod and its progeny that there is not necessary to have any affirmative acts that by virtue of being a public employee, he has the right not to engage in political association. >> well, that's just a restatement of elrod. would it be fair to the proposition that you are putting before the court to say that you are asserting the right to be
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free from government inquiry into an oversight of your views? would that be a fair statement? >> that would be a fair statement, justice kennedy. >> because, it sounds to me from the way you began your argument that we take this case on the assumption that if he had picked up the sign, that if he had been supporting the candidate for chief of police who was challenging the incumbent, if he had been engaged in activity, that would be protected, he could not have been demoted. do we have to accept that proposition for you to prevail in this case? >> no, you do not have to accept that proposition. proposition is clearly that as a public employee, he has a right to either associate or non-associate and he doesn't have to commit an affirmative act in support, in this case, of
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the mayor's opponent which was chief spagnuolo. >> the first amendment talks about abridging freedom of speech. i thought the case came to us on the proposition that he wasn't engaging in speech at all, that he was not engaging in association, he was not engaging in trying to convey a message. he was just picking up a sign for his mother, and if that's the basis on which the case comes to us, i'm not sure how he can say his freedom of speech has been abridged. >> in this case, mr. chief justice, the case comes to us with respect to association. with respect to speech, speech is governed by a different doctrine than association. there's no need to do a pickering analysis in this case. >> he wasn't associating with anybody any more than he was speaking. he was doing neither one. he was associating with his mother, i suppose, in picking up the sign for her.
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but he was not expressing any political view, he was not associating with a political party. what case of ours vindicates the right that justice kennedy described to you in which you readily agreed with, what case of ours vindicates that -- >> elrod would stand for that proposition. >> elrod says you have a first amendment right to favor a political party or not favor a political party, and you cannot be fired for doing so. that's not what happened here. >> he was not iffavoring a political party. >> exactly. he was not favoring any first amendment view, whatever. he was fired for the wrong reason but there's no constitutional right not to be fired for the wrong reason. if he was fired because his government employer thought he had committed a felony and he hadn't, he might have a cause of
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action under some statute, but there's no constitutional right not to be fired for the wrong reason. and that's what happened here. >> there's a constitutional right, justice scalia, to be able to be free from patronage decisions and to be discharged or demoted on patronage grounds. >> where do we say that? we never said that. elrod and branti are cases decided under the first amendment. the first amendment guarantees the right to freedom of speech and freedom of association. your client was neither speaking, nor associating. so how could he possibly have a cause of action under the first amendment? >> he doesn't need to speak and he doesn't need to take a position. the ruton plaintiffs, they didn't take a position with respect to promotion or transfers. they took the fact of the matter
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is that since they were not affiliated with the republican party or supporting the republican party or endorsed by the republican party, none of those individuals would have been promoted or transferred. they didn't take any affirmative acts. >> i don't understand, i don't understand your answer. what expressive activity did he engage in? he was not allegedly demoted for failing to support the mayor. he was allegedly demoted for seemingly supporting the mayor's opponent. >> in waters, this court looked at the motive of the employer, the motive of government. if government perceives that you are are engaging in a political activity and the motive is to
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suppress one's beliefs and associations or non-associations, then you look at it through government analysis. and it's the basis that you are evaluating. here they evaluated the facts that he was engaged in campaigning. offic officer her heffernan went to a gathering and picked up a sign. what was misperceived was the fact of his intend. he said that i'm not intending to department, but all of those are first amendment activities. >> let me clarify how i thought the case was reported. let's say the employer comes in and said to you, smith, i saw you getting a political sign and you are fired. and smith says it wasn't me. i was off in a different town
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then. in other words, it's a pure mistake of fact. your answer, as it seems to me, you try to get advantage of the fact that you could perhaps have argued this was expressive activity. he was at a meeting, a political event, he was getting a sign. but your theory, i thought, didn't depend on that at all. it was simply a mistake of fact. can the person who was not there, can he bring a first amendment challenge to his dismissal? >> yes, mr. chief justice. and the point i was making -- >> it's still not clear to me, what is the right that he's asserting? and i'll back up while you're thinking about that. can a local government say that all of our employees must be neutral in campaigns and must not take part in campaigns? they can vote but they can't take part in campaigns, like the hatch act? >> there are hatch acts.
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>> can the government insist on neutrality? >> i think the government can have a policy after balancing the interest between that of the employer and that of the position. >> is that an issue in this case? is there any allegation that there was such a policy of neutrality? that no employee could engage in political activity? >> justice ginsberg, there was no such policy in this case. >> i'm sorry. i thought there was an unwritten policy. >> there was a policy that the chief said expected with respect to members of his staff only. however, with respect to that policy, there's no testimony regarding that policy. in other words, the team that worked in the chief's office, there were four individuals that
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were officers. none of them heard of that policy. also that policy was never raised allowing any of the motions for summary judgment before it started twice. we believe that that motion is waived. but to answer your question is the fact that no one knew of this policy so he could say you had a policy and you make reference to it, but it's not supported by any evidence in this case. >> is there a remedy for your client apart from this action under the first amendment? does he have protections of any kind or collective bargaining? let's just say, what would happen if the boss comes in and says, you know, you didn't turn off the lights last night, you're fired. is there a way for him to say, i was on leave yesterday. it wasn't me. >> that's not a constitutional violation.
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>> my point is, maybe this shouldn't be a constitutional violation if there remedies to address what may or may not be an issue. >> there were no other remedies. there is a state -- new jersey has a state civil rights act what mimics 1983. just because there's such a right doesn't mean that you can diminish the first amendment and give up your first amendment rights. so clearly we proceeded with the fact that there was a violation of the first amendment. just because it was created by the state. >> what is the act? that's a strange act. it protects state employment only against first amendment violations? >> no. it mimics -- >> i can't imagine that. it must have other protections for state employees. >> with respect to the new jersey statute, it's identical to a 1983 cause of action. it doesn't give you any
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additional rights. officer -- >> you have to violate the federal constitution to get relief under new jersey law? >> do you have to? >> that's what 1983 says. what does new jersey law say? >> he proceeded in federal court he has ever right to proceed in federal court for a first amendment violation. >> what does new jersey law say. you brought it up. what does it say? >> the statute mimics the 1983 cause of action. >> if you violate, you can't fire a state employee in violation of the federal constitution. it's strange law. >> you don't have the text of it, do you? >> i'm sorry? >> the text of the new jersey law so that we can know what we're talking about. >> sure. the new jersey law can create substantive rights. with respect to this matter, he's also not protected by civil rights either.
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>> the believe says it provides statutory action for an attempt to violate an individual's civil rights. is he wrong? >> an attempt to violate? >> yeah. >> it is included in there, but that doesn't give you an exclusive right. you can't diminish -- >> the question is not whether the new jersey law aggregates first amendment rights. the question is whether he has an independent remedy under state law. that's the question i think that's being asked. >> he could have a remedy under state law. but in this instance, he per sued his first amendment rights -- >> how could he? what civil right was violated, if what mr. goldstein says is the state of the law attempting to violate civil rights. what right if we say there is not --
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>> the right not to associate. >> if we said it doesn't exist. you lose this case. >> if what doesn't exist, justice sotomayor? >> just that. >> he has every right to bring this claim. >> he may have broader rights under the new jersey law. i would be surprised if that were not the case. >> the civil rights under the constitution. >> they are new jersey laws. the fact of the matter whether or not he engaged -- there could have been a violation of any type of new jersey statute. it wasn't alleged in this case. it was never brought up by respondents in this case during any of the arguments on any of the briefs. and therefore with respect to this matter it's our position that he has ever right to
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maintain this litigation with respect to violation of his first amendment right. and here he is alleging that he has the right not to associate. and that right stems from the fact that we have -- this court has considered elrod and its prodigy. it makes a mistake in requiring them to engage in some type of political activity, campaigning. that's not necessary, as i indicated with elrod and the rueton plaintiffs. the decision in this case actually lacks common sense. if you take a hypothetical going to pick up a sign and when they go, the sign is at a gathering.
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one says to his employer, yeah, i was supporting spag no la. the other says no, i'm not supporting it. i'm doing this to pick up a sign for my mother. it should make no difference. the outcome is the same in the sense that they're both engaged in that activity. the only difference is that the employer perceived mr. heffernan as engaged in that activity. they went to stifle and squash his rights of negotiation or not association. the motive was to suppress that. that has a chilling effect on other employees. it's clear from the testimony in this case. if you go to the the appendix
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page 50, what is telling about this case is when he went to pick up the sign, there was a councilman there who was a chairperson of the election and he said to him, boy, you better be careful. maybe you should come back later because we were hanging up these signs. that clearly show the chilling effect it would have not only in this police department or in the city, but in different jurisdictions, they would have the same issues. you would have to think twice. if you went for a gathering, the campaign and you went to hear a speaker and you picked up a p pamphlet and put it on your desk and your employer saw that and didn't like the candidate and they took action against that, that is an based upon a motive to suppress one's rights. >> all of that would be true if they say i will fire anyone who is not a republican. would there be a cause of
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action? would anybody have a cause of action because of that speech? >> because of the speech itself? >> he hasn't fired anybody. he's just said, i am going to fire anybody who is not a republican or anybody who is not a republican will not get promoted. does anybody have a cause of action for that? >> this would be no claim because no action was taken. you have the perception thatf:ú you're engaged in activity -- >> exactly. so what counts is whether action was taken for a particular reason. not whether you chilled, whether you chilled people. what you're arguing to us is this is unconstitutional because it chills other people. that just doesn't carry water. >> justice scalia, what carries water is the fact that in this instance heffernan was denoted on the mistaken perception that he was engaged in activity and you don't need to engage in that.
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>> would you say he was demoted because he gave the appearance of exercising his first amendment rights? >> yes. because they per seefd it that he was exercising his rights. and the fact that he actually was not engaged in any political activity should make no difference with respect to the motivation outcome of what took place with mr. heffernan. the issue was clearly that it was ill will, it was because it was against the administration and they took that action to suppress that and chills others. mr. chief justice, may i preserve the remaining time? >> you may. >> thank you. mr. anders? >> may it please the court, we think he has a right not to have adverse action taken against him
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for the unconstitutional purpose of political beliefs. he was directly injured -- >> what's your best case? >> there are two aspects that support that. but we think the way that the court defined the right of issue in o'hare demonstrates that the employee doesn't have to exercise his first amendment rights first. in the cases they said the employer can show a violation of the first amendment by showing that the employer acted for the unconstitutional purpose. >> i missed what you said. those cases were? >> this is branty, again in r rks tan and then o'hare. >> you say in all of those cases
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no first amendment right was being exercised? is that your point? >> actually in the routan case it was three plaintiffs and it was not clear. >> what was it clear that they had? >> so the court -- >> was it clear that they hadn't? >> it was not clear. the court doesn't inquire. the plaintiffs had action taken because they lacked the support of the correct republican party officials. that's all the court says about their allegations. there's any number of reasons they could have lacked that support. they could have affirmatively refused of course which would have been an exercise of first amendment rights. but on the other hand they may not have had the time or they may have been ignorant of the requirement in the first place. those wouldn't have involved an affirmative exercise. >> when anyone is fired or demoted, it hurts and you want to bring a lawsuit sometimes.
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up to now those lawsuits would have to show i'm asserting a first amendment right and it's for that reason they was not promoted. but what you're saying is you don't have to show that at all. all you to assert is that the reason i was not promoted was that the player believed that i was thus and so or not thus and so. you don't have to show any assertion of a first amendment right. you just show that the employer liked republicans and that's enough. >> well i think in the employment context there's no question that the plaintiff was directly injured by the unconstitutional position. but to respond directly to your point, i don't think there's a serious concern here that there will be a flood of meritless lawsuits. that's for two reasons. i take your point that this will expand the universe of litigation somewhat. but we already know in the
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statutory context the courts have recognized suits based on a mistaken perception and in that case we haven't seen any flood of meritless lawsuits. and with elrod, it's always been easy for plaintiffs to allege particular affiliation of belief. i was in the republican party. >> how do you know we haven't seen a flood of meritless lawsuits in that context in. >> we haven't in the statutory context. >> the one you were just referring to. >> it doesn't come up very much and when it does it looks to us that courts have been able to use the standard technique. >> you haven't done any survey to see how many complaints have been filed in this case? >> no. but you see that the courts have able to use summly judgment in order to get rid of the claims where the allegations are not plausible or there's no evidence. but if the plaintiffs are going to have to allege that they held the beliefs in question, this is going to raise the concern that justice kennedy mentioned
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earlier, oversight of believes. every time an elrod case is brought, the defendant will have the incentive to say -- >> are you say tlg's a right to be secure from government oversight of your beliefs? >> i think the court recognized that is a particular concern. we don't want courts to have to examine the nature and extent of the plaintiff's beliefs or associatio associations. >> there's a good idea maybe. and maybe it should be in some civil service act. but where do you find anytime the first amendment? >> i think the right in question is the right not to be subject to a test of political affiliation. >> is that your concern, with a chill or is there some other right that is somehow atektffec. you turn around saying that the government cannot act for an unconstitutional purpose. we ask how the defendant is hurt. what is his right.
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that is unclear to me. >> we feel that the defendant has been hurt because of the way they define that is the way not to attest the affiliation when it's not a job requirement. it's not talking about a separate right, but i think the court was suggesting we shouldn't have tests if we can help it that sleeve the court to have to probe into a plaintiff's beliefs. that's exactly what will happen. >> i don't know why it's not a right to be free from arbitrary action based on a mistake. that's his action here. he made a mistake. you thought i was being politically active. i wasn't. is there such a right under new jersey law, you can't be fired for an arbitrary reason or you can't be fired for a mistaken reason? >> at least with respect to some job actions, there would be a right under new jersey law. i'm not sure whether it would apply here. but i think the plaintiff's
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complaint here is not that he was fire for an inaccurate reason, it was because he was demoted for an improper purpose. the perception that he was engage in protected first amendment activity. >> you brought up that the employer might have had that policy. i think you said we should remand to determine whether this employer said nobody engages in political activity. >> if you look at the petitioner here, there would be a remand -- >> to think that there was a policy? >> there is a factual dispute about this. look at the summary judgment filings, document 189 on pacer, there are in the respondent's statement of undisputed facts, some assertions that this was a neutrality policy. you have dispute coming back from the other side and nobody
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new about that policy. we think that is one thing that potentially the lower courts would have to decide whether it was preserved and resolved in that sense. i want to get back to another concern that i think is respondent's position races. we do think that the petitioner has his own first amendment right here. that was violated. we think that when an employer acts against an employee based on a mistaken perception of his beliefs, that creates the same chilling effect with which the elrod cases are concerned. they expect orthodoxy and will be chilled in their association as a result. i think there is another concern that deepens the chilling effect. the logic of respondent's position applies not only in cases of honest mistake, it also applies in cases where the employer act to exploit a loophole. you can imagine the situation in which the employer knows that people have engaged in affiliation and it does that by
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acting against the employee. i think that is one of the dangers of respondent's rule here, it will create a loophole. what we are saying is that it's just a narrow corollary that the court recognized. when the employer acts with the exact same intent that is already permissible under elrod and it injuries the employee, then the employer should be equally liable. they shouldn't get a free pass because it's ill fated and wrong. if there are no other questions. >> thank you, counsel. mr. goldstein? >> mr. chief justice, may it please the court, the fight in the briefing is over whether the plaintiff in the case like this has to assert a constitutional right. the questions so far indicated an understanding that the plaintiff would have to. and the real question is there actually a constitutional right here, one that we might define
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in other terms, including the one that justice kennedy defined. and this is discussed court's opinion in describing elrod and branty. >> can you explain, mr. goldstein, what sense it would make to say -- there are two people, for example. one of them is a big supporter of spag no la and he gets demoted and the other is politically neutral and he gets demoted because the player thinks he's a supporter of the rival candidate. how could you make sense to a person of ordinary reason that one of them, the one who was in fact engaging in political
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activity, can't be demoted but the other one who just was innocent didn't do anything? >> i have to focus on the precise wording, but you identified this as the second employee who was politically neutral. and the court has said in cases like elrod and branty that the decision to stay neutral -- i'm going to not choose between them because for any reason, that's a political choice. both of those would have a claim. this case is different. lit cli different. critically different. the other side made only two arguments. he was a supporter and had no association whatsoever. he didn't have any more association than i did. he was politically oblivious. if you were to ask me that question, what sense does it make?
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one is exercising a constitutional right and one isn't. >> just to make sure i understand, suppose someone comes into office and it's a democrat and he said i want as many democrats as possible in my office. no matter what jobs they're doing. what you are saying is he can't demote or fire republicans. he can't demote or fire people who have other political views neither democrat or republican. but what he can do is get rid of anybody who is plit scli apathetic. is that your view? >> typically the answer is yes. i would like to explain why. there is nothing in the first amendment that says that the government can't encourage people to be politically active. >> you encourage the person to be politically active and then
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fire him or her because they're politically active the wrong way? >> no, sir. >> suppose the employee says i don't like the evening news. i like science fiction. i don't know whether i'm republican or democrat. i don't care. he cannot be fired? what is his right? >> my point, justice kennedy, is that he may have a state law right. he does have a collective bargaining agreement right, but he doesn't have a first amendment right because he's not engaging in first amendment protected activity. >> see, i always thought -- >> excuse me. sorry. the government has a right to compel him to declare one way or the other? >> justice kennedy, that brings us back to your question, and that is does he have a right not to have an inquiry into his political views, and that is, of course, not a right that's been recognized in any other political association context. when the court discussed it in o'hare, it did it in a specific and important way. it looked at cases like elrod and brandty which are general policies.
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what the court has said there is that when it's a sweeping policy, it's not necessary to inquire into individual political beliefs. and what those cases ought to be understood as is applications of first amendment overbreadth doctrine. it is commonplace in first amendment law that if you have a general rule and the general rule will be unconstitutional as applied to some people and the other people involved weren't asserting first amendment rights, the policy can be facially unconstitutional, and we don't inquire into the individual standing of the plaintiff. and that's what happens in elrod and branty. it's not necessary to inquire into the each individual employee. it is an entirely different -- >> see, i had always thought that the idea behind those cases is a different one, that the idea has to do with why the government acted. and once we say that the government acted for an impermissible purpose, which is to, let's say in my hypothetical, get as many democrats as possible into the government, it matters not at all whether the person is a republican, an independent or
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somebody who's never thought about politics in his life, because the government is acting in a way that's wrongful irrespective of that. >> right. we just disagree. it's called an individual right, not a government wrong. the individual has to be engaging in, whether it's expression or association -- i actually think it's not contested, justice kagan, any more on the free speech side. that with cases like waters, an employee cannot bring a free speech claim that says i didn't actually engage in free speech, but my employer thought i did. there is no first amendment right not to have this individual inquiry. and remember that our petition in particular -- >> so does that mean that the government can compel speech of a person if the person really just doesn't care one way or the other? >> no. it's a very important distincti distinction. let me give a hypothetical that ought to be hard for us, and that is, heffernan is asked by the chief of police, do you
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department the mayor? he's completely agnostic and he refuses to support the mayor and he's transferred. the decision not to support or to be subjected to your hypothetical is a political choice. this case was framed by the plaintiff in a very specific way on purpose. and that is he disclaimed any such influence, any such pressure, any such choice that he was having to make. now, the important piece on this question of inquiry is that our position only applies to a party that doesn't claim anything other than being politically apathetic. so justice kennedy, there is no inquiry. justice kagan is quite right, that if you have somebody who's an independent or democrat or republican, the first amendment doesn't care. but if the plaintiff is going to pursue a claim that says i'm not engaged in association or speech, there's nothing to inquire into. >> mr. goldstein, let's take a title 7 case, and the employer fires a woman because he thinks she's pregnant. she brings a sex discrimination case and alleges, well, i wasn't pregnant, i just was gaining
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weight. so she has no sex discrimination claim, then, because she wasn't pregnant? >> justice ginsburg, the courts are divided. the position of the eeoc is that she would have a claim. i just think it's a good point for us that congress can write laws that recognize such regarded as claims. >> those statutes focus on the employer. the employer cannot discriminate on the basis of sex. >> right. >> and that employer was doing that. the first amendment does not focus on the government. it focuses on the citizen. the citizen has a right to free speech and free association. that's the duchs difference between the cases. >> you're not surprised that i agree, justice kagan. if we could take this outside the public employment context, and the reason i want to do that is that we ought to be able to agree that the first amendment rights aren't greater. the court has pointed out that there's a greater federalism interest in managing the public employment work force and also that this is an unconstitutional conditions case.
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but just imagine the following simple, you know, hypotheticals that relate just to this case. imagine that the chief of police, with the same motivation, went up to heffernan as he went to pick up the sign, grabbed the sign and tore it up. or imagine that heffernan was trying -- was stopped from entering a parade in favor of spagnola, but what he was actually trying to do was just cross the street. or he went to the building where it is that spagnola had his headquarters and the chief of police stopped him from going in, but he was actually going to his lawyer's office. those are exactly the same motivation. i don't think there's any way the court would recognize such a claim. it's a very sympathetic claim, okay? i get the fact that we are very earn canned that public employees not be transferred or demoted, but we have other laws and other regimes that fill that gap. >> what is the other law here? what relief does he have? >> he has two forms of relief. the first is the collective bargaining agreement. i will tell you that it is not in the record, but it is judicially noticeable.
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it is a public document. it's available on the government websites of the state of new jersey. and it is exactly what you would expect. in fact, it's a little bit broader. it says that if you are -- you have an employment action that is inequitable, it is grievable. the second thing is the attempt provision, which was discussed, and justice alito is right, that there are broader civil rights under new jersey law. and this just makes sense. the court, in cases -- >> do you agree that the petitioner is entitled to relief under that provision of the collective bargaining agreement? >> if his allegations of the facts are correct, yes. >> in your hypothetical about stopping the person from crossing the street or they think entering the parade, the individual has no right to insist that the government doesn't make a first amendment judgment about his activities? >> that's correct. justice kennedy -- >> in other words, the
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individual and the citizens of the united states have no right, have no injury, have no interest in making sure the government doesn't evaluate everything they do from a political standpoint? >> i think they have an interest, justice kennedy. i'm not saying that. we are concerned that people be able to have conscience. that they be able to make their own personal private judgments. but what we're talking about here, in the context in which there's a real concern that i would like to talk about, about whether it will interfere with the management of local government, that it's an affirmative constitutional right. it's a violation of the first amendment. now, the reason you ought to be concerned, justice kennedy, is there's another side of the coin. take it from the perspective of the supervisor. if this right is recognized, which is to say the plaintiff need not have engaged in any association, then the supervisor's expression of political views may well be chilled because he has to worry that any employee can say, look. i was regarded as politically active. if i could just give you this case again, and that is take the sign out of it.
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the plaintiff says he was well known as a spagnola friend and supporter. okay? imagine that that's discussed in the chief of police's office. but the chief of police thinks that heffernan really should be transferred. okay? the chief, if the petitioner is right here, really has to worry because if it's discussed, then there's every reason that heffernan can just bring a lawsuit saying, look. i wasn't actually involved in the campaign, but you did it because he was my friend. and that is a very significant consequence for the individual rights. now, if we didn't have other protections that get to the concern about conscience, i could see the case getting even stronger. >> we know that you can't -- let's assume in this particular position you can't be fired because you're a republican or democrat. and that's what -- that's what they do. but that -- the person did not engage in that activity. he still is in the position of the government ascribing to him, a political belief that he does not have.
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>> justice kennedy, that's right. the government thinks a lot of things about me. okay? some of them are not very nice, i imagine. and some are about my politics and that sort of thing, but there is not a constitutional right to have the government not think something about you. just remember as well -- >> here they thought and they acted. >> okay. or to act, justice kennedy -- >> it's not just something. it's the government is taking action against a person because the government thinks that that person is exercising first amendment rights. and i thought, unlike justice scalia, that the rest of the first amendment is operating on government. it says government thou shalt not -- thou shalt not act on the basis of someone's expression, speech or belief. >> well, essentially, all of the individual rights in the constitution other than the anti-slavery provision require state action. they all talk about what the government can't do.
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but what the government -- >> so here the government acted. no question. they demoted the person. this was a detective, and they put him back on the beat. so the government acted. why did they act? because they thought that this person was engaging in political activity. >> well, justice ginsburg, let me just say that i don't think it's contested after the petitioner's reply brief. you described this in first amendment terms. that if this was a speech case, which it used to be, rather than an association case, he would lose. it is well settled in this court's precedence that the threshold inquiry under pickering is did the individual÷ engage in the constitutionally protected activity? this actually is an issue, i should say, in the court's other associational case, public employment association case, this sitting where there is a significant issue of is there a different rule that applies when we're talking about a policy, justice kennedy, that applies broadly to a lot of employees versus an individual one-off
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employment action which is what is at issue here. we think that's a critically important distinction whether you look at this as kind of the pickering standard case, where the first thing that has to happen is that the individual has to assert at least that they engaged in the constitutional protected activity. if you have an elrod and branty-type case which is what's discussed in that part of o'hare, it's an entirely different kettle of kish because there you do have a general policy. you could see people being chilled. you could see the government taking a broad view of its employees. >> i guess i'm not sure how that works. it just seems to break down very easily, if you can't have a broad rule that says that you can fire everybody but democrats, you're saying that you are going to allow somebody to come in and fire people one at a time. >> justice kagan, that's, of course, not what i'm saying. what i'm saying is that under first amendment overbreadth doctrine, when you have a general policy, and this is what we think happened in elrod and branty, the fact that you do not inquire into the individual
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person's political views because the policy is facially unconstitutional. but it has never been the case in any context, and the other side is that every opportunity in the world, we cannot find any first amendment case that says you know what? you don't have to engage in constitutionally protected activity so long as the government thinks you did. and it's really a problem if that's the rule. because it is the threshold thing that stops plaintiffs with meritless cases from getting out of the box. in all of these cases, if the plaintiff no longer has to say, i engage -- >> but you're saying -- and i think you said this straight out -- you're saying, i can come into an office, i'm a democrat, i can identify every person without the well-known political view, every couch potato out there, just fire one after another after another after another, replace them all with democrats. change the entire character of the office. do it for a reason that i prefer one political view to any other and that that will not be a violation of the first amendment. >> that will -- two things. first, i think it is practically impossible because you would
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have to somehow magically pluck out the people who are politically apathetic from those that are politically neutral. i just don't think you can do it. but the second is, that's right. the constitution doesn't fix everything. >> you want this court to hold that the government of the united states has a right to ascribe to a citizen views that he or she does not hold? >> justice kennedy, i think that that is not a first amendment violation. i don't think the other side thinks it's a first amendment violation. remember, there's the materiality requirement? >> see, i had always thought that the first amendment, running through all our cases, is an extremely strong strand that part of the reason we have these protections is because we worry that government is doing things for impermissible reasons. that the government wants to create a world of speech in which everybody agrees with it, and nobody opposes it. and that that's a fundamental tenet of what the first amendment and all our cases are about. and you're saying oh, no, the government's motive doesn't really matter. as long as you can't point to somebody who is holding up a sign.
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>> justice kagan, i think you are right. the court has said that it is a necessary but not sufficient condition. waters makes very clear, which is a first amendment, public employee case that the individual has to have engaged in the constitutionally protected activity. every one of -- garcetti says the same thing. you have to have an individual -- >> may i just approach the same thing from a different perspective. suppose can congress pass a law or a legislature pass a law that attempts to abridge the freedom of speech. is that a violation of the first amendment? it's an attempt. what would the attempt -- i'm not -- >> well, they say examples. they pass a law, no one can espouse in a public place the political philosophy of
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ruritanianism. substitute anything you want for that. they pass it. and by the way, the six people who hold that philosophy all leave on a boat before the effective date. but -- or what's more likely, they bring a declaratory judgment action and it never takes effect. and therefore it had no impact. and that happens every day of the week. i'm just wondering if such a law, which is an attempt, it's right on the books as blatant as you want, whether that violates the first amendment. that's a serious question. i'm not taking a point of view. i want to know what you think. >> justice breyer, the reason that we allow -- >> i just want to know, is it yes or no? in your opinion, does it account to a clear attempt to violate the first amendment in a statute that has general application, does it violate the first amendment?
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does it abridge the freedom of speech? >> if it's only going to be an attempt and it's not going to succeed, no. the statute you describe is unconstitutional. >> it is unconstitutional. >> that's right. there are all kinds of times -- >> it will have a lot of bad effects, all kinds of chilling effects all over the place. >> if it's defined as not going to succeed -- if the statute doesn't -- >> no, by chance, it happens not to succeed. >> no, justice breyer -- >> in my hypothetical. >> i know. i'm just trying to keep up with it. in the one that you just described, justice breyer, if it is the case that the law is going to go into effect, we do allow, including under first amendment overbreadth grounds, an effort to bring a declaratory amendment action. >> if, in fact, they want it to succeed, that's why they passed it, and through a fluke, it fails. is the fact that it fails mean that it doesn't violate, it doesn't -- does it not -- does it or does it not violate the first amendment? >> it doesn't. >> it does not. >> and here would be an example.
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>> okay. >> if i could just finish, justice breyer. i really do want to help. if congress at the same time passed a law that said no federal funds shall be used to implement the ban on talking about the political views of ruritania, we tried, but the money was taken away from us, it's not unconstitutional. >> or you could say that the law is passed by congress but vetoed by the president. is there a violation of the constitution? >> there would not be. but in my hypothetical, or in justice breyer's where it actually goes into effect -- >> we're off on a tangent because there's no injury in this situation when the law doesn't go into effect. but coming back to what justice breyer, i believe, is attempting to say, i don't know, mr. goldstein, that i understand either, and i think justice kagan asked you this. why does it matter, and we don't
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care whether someone is a republican or not in elrod and branty and those cases. and you say it's only because it's a policy. the intent of the government is to say i'm not going to promote anybody who is not a democrat or not a republican. >> more than a policy. it will actually have adverse consequences for someone exercising their constitutional right. >> they've gone along and not promoted people. all right? so you have to have someone come in and say, i'm not a democrat? i'm not a republican? or you need someone to tell you what they are? >> no, no. common sense does not leave the courthouse, and that is if i have a policy that says i will not hire democrats, i think a court would understand that there are going to be democrats who would apply for job. and there doesn't they'd to be an inquiry. >> so, then, why isn't it simple to say, i'm not hiring you, or i'm demoting you because you
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politically associate? and doesn't that shield the person from even walking by a campaign? doesn't it shield others who do want to associate marginally? i'm assuming that there's no policy in place or that there's no -- nothing to prevent this otherwise like the hatch act. >> i think it's a really important point on the question of chilling because elrod and branty and the rules that also -- and o'hare, which is a one-off case -- do say that you can't do this for political purposes if the person is actually exercising a constitutional right. so that we all agree that if the plaintiff here was a supporter of spagnola or even if the mayor had decided to remain politically neutral, this is a bizarre case that comes to you on the assumption that he is completely politically apathetic. >> it is bizarre. do you really believe, mr. goldstein, that the constitution
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does not solve all problems? you made a statement to that effect. you really believe that? >> no, but -- >> it doesn't solve every problem. >> no, but i do think that there is a concern that comes into play. so i do not mean to demean the concern about the government having a sense of what individuals' political views are. but i'm saying that that happens, your honors, in all kinds of cases, redistricting, campaign finance. there's lots we do to ascribe political views to people in this country. and adopting that doctrine is going to have pretty widespread consequences when it's not necessary. i do think that it should be common ground that there are multiple players of protections for these employees. the basic rule -- and justice kennedy, remember, under the basic rule, the plaintiff has always come in and said i'm a democrat. right? the elrod branty rule when it's involved one-off cases.
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the opinion in o'hare has never been regarded as a first amendment problem when you don't actually exercise any first amendment rights. >> that is a first amendment problem for the reason that lots of other people will have their speech chilled. and normally in the law, there is a doctrine where the person who does the bad thing makes a mistake. he's held anyway. that's true of transferred intent. you shoot "a," but you meant to shoot "b." it's true of attempts, generally. >> it's not the constitution. >> why not? that is to say i would think that a statute that has a chilling effect on the speech of millions of people but is directly aimed at a, b and c, if because of some fluke a, b and c are not themselves injured, nonetheless everybody else is and it would still violate the first amendment. that, i think, is what you have here, which is why i raised my point. >> great, justice breyer. and if you would just contrast
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in your own mind the statute that affects millions of people versus the beat cop who talks to one person in terms of its chilling effect, because first amendment overbreadth doctrine was born because of your hypothetical. the concern that a broad policy or statute will have widespread effects, that is not anything like this. we have a -- >> do you know of any case in which we have relied on chilling effect where what was at issue was a one-off like this one? as opposed to a general policy which had a chilling effect? i don't know of any case. >> to the contrary, i can tell you that in both waters and garcetti versus sabios, the court said, look, we recognize the rule that's being proposed to us. so in waters, it was the idea that the public -- the employers' views wouldn't matter. it would just be whether the speech was protected. in garcetti, it was the question of whether it was the public employer speech. and the public employees' argument in both those cases are
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that, look, these rules are going to chill speech because they are of uncertain boundaries. we need to have wide-ranging expression. there will be inquiries into my speech views, and the court said we just have to balance things here. there is a real concern that is rooted in a history of the united states involving political patronage. the court has never tried to extinguish politics from local government. and if you try to do that in new jersey, we are going to be here a lot. >> the question in this case seems to me to be highly artificial. it's like a law school hypothetical. >> i agree. >> how often will it be the case that an employee will be unable to allege any expression or any association that is protected by the first amendment? it seems to me quite rare, and it may be that this case comes to us the way it does because the plaintiff was dealing with two things. one was the first amendment, and the other -- i mean, one was the
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issue -- the question of his motivation. and the other was this alleged policy prohibiting any kind of political activity. even in the person who's just apathetic, is there not a first amendment right to be -- say i don't like politics? i don't want anything to do with politics? i'm not going to register. i'm not going to vote. >> justice alito, the third circuit has a rule discussed in a brief adopted in a case called galley that says you do have the right to be politically apathetic. the reason the case is so bizarre is that the other side, for its own reasons, decided not to assert that right. now, i will say that it does, nonetheless, matter. because there will be other kinds of cases where you have a public employee that is not asserting any rights at all and does not involve, say, environmentalism or gun rights or whatever. and the public employer, if it's thought just to have perceived the employee as having been involved in some association, then is subject to a claim. >> sorry, you have to -- you have to show some facts to draw
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that inference. and you just can't say, i'm involved in this, and the employer fired me because of that. you have to show some connection between the firing and the plit political belief. >> his support of spagnola is discussed in the chief's office, right, and then he has to be reassigned. and the chief has to really worry that he's going to be sued. that my point is this. the set of cases that you have to be concerned with, there have been no other cases where they've been able to identify like this one is very small. but the downside risk is significant. >> if somebody had come into me before today's argument and just said, does the first amendment prevent the government from punishing the person because that person does not share the government's views? i would have said yes, of
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course, the first amendment protects that. that's the whole point of the first amendment. and now you're telling me no, the first amendment does not prevent the government from punishing a person because that person doesn't share the government's views unless that person is actively opposed to the government's views. but if that person just really could not care less, which a lot of people in this country could not care less. they don't vote. they don't pay attention. they wouldn't know who was running. but the government can punish that person because that person doesn't share the government's views. and i would have said, that is one strange doctrine. >> it may be that i have not persuaded you in this case. i will say, justice kagan, what you ask is can the government do it? the government cannot because there are lots of other protections. and remember, if the person is politically neutral, it is the case that the right of political association is the right of political association. if you aren't engaging in it, you aren't actively pursuing the right and any right, or even if you aren't active about it. >> thank you, counsel. mr. frost, you have a minute left. >> thank you, mr. chief justice. a couple points that i want to make. with respect to declaring one as
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a neutral, if heffernan was engaged in political activity and said i'm supporting spagnola, of course he would be protected by the first amendment. what i'm hearing is that if he said i'm neutral, he would be protected. i see little difference between being neutral and being agnostic in the sense that i'm not taking a position. so -- >> i am so totally confused. i know it was way it was presented to us, but i thought he testified that he had made a choice not to get involved in the campaign, but that spagnola was his friend, and he supported him. so he wasn't neutral. neutral. he just want engaging in associational conduct by choice. that's what i thought. >> that's correct, justice
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sotomayor. and the point that i was trying to make was the fact that in this case, he was not going to be exercising his right to vote or campaign for him, but clearly, he engaged in what we would consider core first amendment activity by picking up that sign, the mistake that the employer made was actually one that they perceived him as actually campaigning on behalf of spagnola, and that should make no difference for the simple reason that with respect to that activity, it's because the court sees that the government is acting for an impermissible purpose. >> thank you, counsel. >> thank you. >> thank you, counsel. the case is submitted. the detroit free prez reports that the fbi is investigating the contamination of flint's drinking water which has left an unknown number of children and others poisoned by lead and resulted in state and if federal emergency declarations. the committee holds a hearing. we have it live at 9:00 a.m.
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eastern here on c-span3. every weekend on american history tv on c-span 3, we feature programs that tell the american story. some of the highlights for this week eninclude saturday night 8:00 eastern, historian at north carolina chapel hill talks about racial tensions of the 1980s were reflected in sports. >> rocky is a heavy underdog in the first film, he loses in the first film to a split decision. he does not win. in "rocky ii" he knocked out apollo creed. it's impossible what happens. but rocky wins. these were both very popular movies in 1976 and 1979 but these are much more than just sports movie. these are movies about race, these are movies about american
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history. >> 10:45, law processer talks about his book "invented by law" arguing that zernd bell is solely remembered for the invention of the telephone. road to the white house rewind with the upcoming new hampshire primary, we look back at 1992 presidential campaign and arkansas governor democrat bill clinton's second place finish in new hampshire and his positioning as the comeback kid. >> while the evening is young, and we don't know yet what the final tally will be, i think we know enough to say with some certainty that new hampshire tonight has made bill clinton the comeback kid. >> we'll also feature both democratic and republican ads that aired in the dwran it state, including those of bill clinton and george h.w. bush.
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and at 8:00 p.m. on the presidency, university of washington history professor talks about her book "pivotal tuesdays" and talks about the elections that occurred during economic and culture change, starting with the election of 1912. for the complete american history weekend schedule, go to next a record on modernizing the u.s. army from the national commission on the future of the army. it was released as defense secretary ashton carter released proposals of his own, one calling for more parental leave. >> the commission was formed by the congress in 2015. it was charged with a number of tasks, two of them at the forefront was how should the army be organized in a period of
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challenging resources and seemingly expanding threats. and secondly a specific charge to address the army's proposal as advanced through the ai vegas restructure initiative endorsed by the department of defense to transfer all apache aircraft from the army national guard to the regular army. several ore tasks that you're familiar with. but those were the two foundational tasks charged to the commission. over the time that the commission has been in existence, we have engaged more than 320 individual units, regular army, army national guard and army reserve across the force. we've visited 17 states and the district of columbia. met with the generals that lead the national guard across the nation, 30 governors, nearly 80 members of congress.
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we met with all six geographic combatant commander, some of the functional commanders, all of that in an effort to make sure we clearly understood, particularly from the governors and from the geographic combatant commands what their demands were for army forces. we met with the associations that represent so many of our soldiers of all three components with think tank, subject matter experts, academics and others who have studied the army and national security, defense policy, some within the government and many without. and we did all of that in an effort to meet the requirement of the law that we conduct a comprehensive assessment. we felt for the eight of us that it was important to receive as many varied and informed inputs as we could to make sure that we were balancing our assessments
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to the degree possible. we also asked each of the eight commissioners and each member of the staff frankly to check their predispositions at the door when they joined this commission and say, he's go where the facts take us, rather than what your predispositions might be. and i'm glad to report that that was certainly the case as we conducted our work. to me the single most important event that we conducted was a thing called the comprehensive analytical review. couple of days at the institutes for defense analysis, that were months in preparation by the staff and many other analysts who helped us. and it was in that classified session that we were able to conduct a number of modelling exercises, varying the inputs, for example, guard, army reserve forces, varying the number of apache battalions, varying the duration
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of boots on the ground or deployment times, varying the periods at home either dwell time or periods where reserve component units were not activated or mobilized. all of that yielded to us some informed decisions that led to our findings and recommendations. you'll see throughout the report 63 individual recommendations. i'll address just one and the other commissioners will address the others. what we found will not be a surprise to you. america has the strongest army in the world. it is made so by the women and men who every day choose to serve this nation when they have many, many other opportunities. the nation must sustain and maintain the all volunteer force. it's the collective judgment of the commissioners that a return to anything other than the all
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volunteer force will not yield the quality army that the nation requires now, nor in the future. with that, let me turn to the vice chairman, secretary lamont. >> thank you, mr. chairman. good afternoon, everyone. as vice chairman of the commission i want to second the chairman's comments on the tremendous effort put forth by my fellow commissioners and staff. it was a pleasure most of the time serving on this commission. no, it was, it really was. a pleasure. >> it says that because the chairman beat us periodically. [ laughter ] >> let me pick up -- let me pick up where the chairman left off talking about the army budget and the critical budgetary recommendations. this commission would never have existed if not for the severe budget cuts imposed by the budget control act. making matters worse, since at least 2011, military budget projections have been on a roller coaster, changing substantially most every year.
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from the budget control act of 2011 as we know as the sequester to the bipartisan budget act of 2015, you can only imagine the challenges that the army has gone through. now add to this the fact that the army and dod operated under continuing resolutions in each of the last eight years. had a plan for government -- had to plan for government shutdowns at least a half a dozen times, and in fact, did have to endure a 16-day shutdown in 2013. with this kind of turmoil, the budgetary operating environment severely and adversely impacted the army in terms of readiness, modernization and in strength. budgetary turmoil has sadly become the norm. but even if we managed to return to regular order, the army still faces huge problems created by
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lower defense spending. from fiscal years 2010 to 2015, d.o.d. funding declined 7%. but army funding declined 14%. now part of your mandate was determine anticipated future resources. after considering several alternatives, the commission strongly recommends future funding at the president's fy-'16 level, which would provide the army with the minimum resources necessary to meet requirements at acceptable risk. now, recall that was the charge of this commission, to look at acceptable risk and anticipated future resources. however, given recent changes in the strategic environment, even that may prove inadequate. let me turn to the army's limited investment in modernization, a source of
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significant long-term concern to the commission. the arm -- army responded to lower budgets with manpower and readiness to support near-term demands. that's entirely understandable. but this left a gaping hole in the modernization program, which in that same time period fy-'10 to '15 saw a funding decline in investment and modernization of 35% in the army. soldiers are only as good as the training they receive and the equipment they have. after all, an army of 1 million perfectly trained soldiers provides little capability if they're carrying muskets. the army made difficult choices to cancel several important program, including the ground combat vehicle and aerial scout. aviation, communication and further ground combat vehicles remain vulnerable to future
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reductions. a primary goal of army modernization programs is to achieve decisive overmatch. in other words, never send soldiers into a fair fight. modernization ensures our soldiers maintain a decisive advantage on the battlefield. current funding levels risk squandering this overmatch capability. so funding at the president's level, fy-'16 would allow the army to achieve a balance between readiness and modernization. but just barely. so again, the commission strongly recommends administration and congress commit to providing spending bills that are on time and contain reasonable level of funding. all right. i'm going to turn the page here. lastly, on a little bit of a lighter note, as the only commissioner from the national guard, i wanted to briefly touch on the allocation of guard
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forces to the states and territories, which is a consideration congress specifically asked us to evaluate. after thorough review, we found that the regulations covering the allocation process are too complicated and sometimes do not reflect the way the process has evolved. however, the processes are sound and use objective, quantified metrics verified by the states and territories. so the commission therefore recommends the army update regulations and policy to clarify and codify the allocation processes in use. and lastly, just one comment about the overall theme throughout this report. and it is, we are one army. one army acting under the integrated and operational total force policy. and we will strive to maintain that with whatever we do. in all these recommendations. thank you, mr. chairman. >> thanks. dr. hicks?
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>> thank you very much to general ham and to secretary lamont, my fellow commissioners and, of course, to the staff for all their hard work. as the chairman said in his opening remarks, the army has a supply and demand problem. the supply-ready army forces is struggling to keep up with the demand of the future and the future doesn't look much better than today. it's not a sustainable situation from the viewpoint of the commission. one of the commission's two primary tasks was to answer this basic question -- how should the army best organize and employ the total force in the time of declining resources and diverse threats. the commission spent an enormous amount of time on this question, using contingency planning assessments, scenario, intelligence estimates, all to evaluate army capacity and capabilities as part of the joint force. we applied data within simple and complex models, and we used our own judgment to examine plausible relationships between supply and demand for forces over time. after all we've heard, read, seen and analyzed, we find that
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an army of 980,000 soldiers is the minimally sufficient force to meet current and anticipated missions at an acceptable risk. within that army of 980,000, the commission finds a regular army of 450,000, an army national guard of 335,000 and an army reserve of 195,000 represent the right mix of forces and again, the absolute minimum personnel levels to meet america's national security objectives. this includes sufficient disaster response and homeland defense capabilities to support current and anticipated requirements, accepting certain key enablers, i'll discuss momentarily. let me add an important caveat. these forces must be maintained a current planned readiness levels and every effort should be made to increase modernization funding as secretary lamont pointed to. this cannot be done on the cheap. maintaining a 980,000 force with adequate readiness and modernization requires funding for the army at or above the
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levels proposed in the president's fy-'16 budget request. funding at the budget control act level is simply not sufficient. even with full access of the army components, this force size provides only limited ability to react to unforeseen circumstances. of note, under current strategic guidance, the army and other defense components are directed not to size for large scale, long duration stability operations. the commission concludes that the army has complied with this guidance and is, in fact, neither sized nor shaped for conducting such large scale long duration missions at acceptable risk. but the current guidance to the force may be inadequate in light of the evolving security environment. this includes ongoing missions in afghanistan and iraq, the global challenge posed by isil and russia's actions in ukraine and beyond. the commission requests -- recommends review to clarify
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the environment strategy mismatch. the commission's analysis did point to capability for improvement given the emerging world environment. we draw particular attention to aviation, which commissioners hale and thurman will discus in more detail, armored brigade team capacity, chemical, biological and radiological and nuclear countering capability. remedying these shortfalls within a 980,000 soldier army would require difficult but necessary tradeoffs. if army and strength cannot increase, our assessment indicates that the army could consider reducing up to two infantry brigade combat teams in the regular army to provide the manning necessary to strengthen aviation, short range air defense and other capabilities that i discussed. doing so, we believe, would reduce overall risk to mission. however, even if end strength targets can be met through such reductions, it would not produce the additional funding needed to mitigate these shortfalls. let me end there.
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thank you, mr. chairman. >> thank you, mr. chairman. and thank you to all of my fellow commissioners for their tremendous effort in helping to produce this report. i love the army, and i think we all love the army, and we believe the recommendations that we've made will, in this report, will make the army even better. i also want to echo the comments of chairman ham concerning the all-voluntary force. i am personally very concerned about the future of what we call the all-voluntary force. i believe we may be reaching a breaking point. so we have to do all that we can to sustain this vital piece of our defense architecture. as the commission traveled around the country, soldiers and leaders in the guard and the reserves told us that they were not being used to levels they expected.
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those who joined the national guard and the reserves fully expect to be deployed, and they indicated that they were disappointed when they weren't used. now, this is a bit of an eye-opener for me, and i think for the commission. this gets at the heart of the all-voluntary force. our soldiers are all just volunteers. they have freely made up their minds to serve this great country. then we heard that they are becoming disappointed about what they volunteered to do in the first place. this is what concerns me. this is what makes the whole thing fragile and a little delicate piece of our defense architecture. so this leads to the obvious question. what happens when we can't get enough volunteers? currently, the d.o.d. goal for the guard and reserve is one
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year mobilized followed by five years at home. and this is known as dwell time. guard and reserve members and many employers repeatedly told the commission that they could meet a 1 to 4 mobilization to dwell ratio. the governors agreed and promoted even greater use of the guard and reserve in federal missions. the governors and employers only ask that deployments be predictable. the commission overwhelmingly agrees that giving the guard and reserve personnel better predictability, not only makes them better soldiers, but also, helps make them better in their day to day civilian lives. and again, this gets at the heart of why they volunteered to start with. commissioner stoltz will shortly discuss important
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recommendations on making better use of 1, 2, 3, 0, 4 bravo authority which could help with this predictability issue. as for the current 1 to 5 ratio, the commissioners does not recommend a change. but we do advocate for greater flexibility in the use of this authority. the commission also found that a significant source of friction between the components was an inconsistency in deployment policies. by that, i mean the duration of time actually spent in a deployed status, known as boots on the ground or b.o.g. while the secretary of the army move active guard and reserve to a nine-month boots on the ground policy, that could easily be undone as soon as the next contingency is on the horizon. the commission concluded that
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making boots on the ground times common across the active, the guard and the reserve would go a long way to achieving this important priority. that is, fostering an integrated total force culture. so this commission recommends that the secretary of defense update the utilization of the total force memo to allow for more flexible and voluntary mobilization periods necessary to maintain a common boots on the ground times in all three components. additionally, the commission found that personnel from the active, guard and reserve must find ways to better understand each other. by having them serve together in all levels will improve readiness and break down the cultural barriers we found.
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another means to help break down cultural barriers between the components would be to cross -- do cross component assignments. the commission offers recommendations to that regard in this report. lastly, a word about training -- combat training centers, or ctcs, as we refer to them. the ctc is a culminating event to determine if units are ready to deploy. if we want to train and fight as one army, all army units need to benefit from this critical training. the commission found that the number of brigade combat teams, or the bcts, exceed the ctcs through-put capacity. some bcts, particularly guard bcts, do not gain the full benefit from this training
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during their projected readiness cycles. we found examples of more than a decade between ctc rotations for some of our national guard bcts. so the commission recommends the army increase the number of annual ctc rotations for national guard bcts. but not at the expense of the regular army rotations. this would enhance total army readiness and build inner operability between the components. details on this can be found in the report. i will end there. thank you, mr. chairman. >> thank you. general stultz? >> thank you. let me personally say how much i really appreciate your leadership, all that you've done to keep us on track and allow us to produce a first-class,
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professional product. all of the commissioners i've worked with are first rate and it's been an honor and a pleasure to serve with. as you have heard, one theme running throughout this commission has been we are one army. and if we're going to be one army the commission concluded that we've got to do more to integrate many programs across the three components. for this report, i'm just going to focus on three of those. making better use of reserve component through the 12304-b authority, improving one army administration and consolidating army marketing and recruiting. 12304-b, can get very complicated, but simply, in 2012 congress gave the authority, called 12304-b, which allows the activization of reserve
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component personnel for planned missions. think of missions like kosovo, sinai, theatre engagement. security assistance, those type of missions. as general ellis just pointed out, one of the things we heard back from the governors, from the soldiers was predictability. how key predictability is. 12304 bravo allows predictability by having preplanned missions. however, to use 12304 bravo, the missions have to be planned two years in advance. and this really limits how we can use that authority. also forces command every year has repeatedly requested funding for 3,000 man years. not 3,000 men. 3,000 man years for funding of 12304 bravo missions and the army has continued to fund one third of that request. consequently, regular army units
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are being used to fill missions violating -- or in short dwell time, when you have active, army reserve, national guard units available, that are same type units, but can't do it because 12304 bravo funding is not available. the commission recommends two things with this respect. the army must program 3,000 man years annually for 12304 bravo missions. congress needs to expand the authority and flexibility so 12304 bravo can be used for more near term, immediate and emerging missions, allowing more flexibility there. next, since we train and fight as one army, we have to manage the army as one army. the three army components operate separate personnel and pay systems. this is wasteful, makes it harder for soldiers to transition between components,
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and the commission believes a single personnel and pay system is the most important step toward implementing a total force policy. the good news is the army's ipsa program offers a solution. it's a web-based self service 24/7 system that integrates personnel and pay for a soldier's entire career. the first elements of ipse have been fielded. and more are scheduled for 2018 and beyond. the commission strongly recommends that army and congress continue to adequately fund the program and maintain the current schedule. we would caution, however, that accelerated implementation or adding more requirements could create problems similar to those we have experienced in past failed software programs. and then lastly in 2014 the army -- the army, recruited
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115,000 soldiers. using about 11,000 recruiters. but this was done with the regular army, national guard and the army reserve all vying for the same potential recruits. and in some case, competing against each other for a shrinking pool of qualified candidates. we have to recruit as one army. to integrate recruiting, congress should authorize and fund a pilot program to allow the recruiters of all three components to work together and be able to recruit for all three components. matching applicants to the component best suited for to improve overall effectiveness in recruiting. the army also spends about $280 million annually for the regular army and the guard. multiple marketing efforts weaken the branding. and inherently are less
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efficient. so the commission therefore recommends that the army consolidate all marketing under the army marketing and research group. more information on these are in the chapters in the report called developing one army. thank you for your time and, mr. chairman, i'll yield back to you. >> thanks. >> thank you, sir. it's a great day to be a soldier. and to be a retired soldier or one that works with soldiers. but i'd like to echo the comments of the rest of the commissioners to this point. it's been a fabulous opportunity to serve. we have had a phenomenal staff who are sprinkled amongst the audience here who have really made it easy for the eight of us to do our job or relatively speaking easily. i'd like to thank you, mr. chairman, for your leadership and the focus that you helped us to focus on as we move forward. this afternoon i'm going to talk
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about some issues that are clearly part of what i did as -- for the last 35 years and that i hope will be taken into account and to help our army get better than it is today which is the best army in the world. part of what makes our army what it is is the huge investment in leader development and training. i think it's easy to prove we are the envy of the world by how many international students attend our schools and education, and the immense interest on how we develop leaders. we also do a phenomenal job on training but we have some issues and i would like to talk about that. the operational tempo over the last 13-plus years made our leader development and training suffer. for many different reasons. and all of them are good. but the challenge has been how do you generate the next generation of leaders while you're simultaneously conducting operations around the world?
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we've had to make some short cuts. we had one course that originally started off as six weeks long. it's the initial leader development course for the army. now called the basic leader course. and that was eroded over time to about a two-week course. still the same content, still the same learning outcome. if you're an educator or understand a little bit of education, you really can't smash six weeks into two and expect the same level of leadership development and education. we also saw a lot of issues that had to do with overcapacity. you know, across the army, we have a tremendous amount of learning institutions. some would say too much. for example, there are 54 regional training institutions spread across the states and territories along with the active component education opportunities and those in the army reserve.
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what we need to do is take a hard look at those and determine whether or not we have an overcapacity challenge and whether or not we can combine some of these institutions and the students which will help to break down some of the cultural myths that are across the three components. i would say that this is a great opportunity to make a concrete total force policy impact when you have students in the same classroom from different components that are sharing their own experiences about what it means to be a guard or a reservist or someone on active duty. if you take that and spread it across the life cycle of a soldier from private or in my case to sergeant major or from lieutenant to general officer, learning will occur, and the ability to work together as a team will grow. we also need to take a hard look at training. the commission strongly believes
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a force of 980,000 soldiers will require increased reliance on the reserve component to meet the demand. given that reality, the army needs a quantifiable and objective assessment of unit collective training and readiness. the army has not yet fully implemented the t-level assessment methodology for evaluating upon training level readiness. for those of you who don't know, the highest training level is called t-1. thus the objective "t" name. the commissioner found it's a big improvement on current assessment methods based on quauntd -- quantifiable measured and strongly recommends the army implement it quickly. for more information on these topics, they can be found in developing one army chapter of the report. thank you, mr. chairman. >> thank you. thank you very much. secretary hale? >> thank you. i spent 12 years as a department
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of defense, the air force and then d.o.d. comptroller have a motto. we're not happy until you're not happy. so with a motto like that, we don't get invited on a lot of dates. i appreciate the chance to serve. one primary assignment of this commission was to look at the apache transfer issue. it's part of the ari. we focused on the transfers in occurrence with the law. the commission gathered extensive information. i won't go through it again. i will say, the aviation area, we used that information to evaluate options based on four criteria. wartime capacity. another was wartime surge capability. how well can you build up quickly if threats change? peacetime deployments, stress was a concern. as, of course, were costs and we measured costs relative to the ari. we look first at the restructure initiative.
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it has 20 battalions of apaches, each equipped with 24 aircraft, and no apaches in the guard or the reserve. we conclude, the ari is a well crafted initiative, designed to hold down costs, to free up money for modernization. it offers substantial wartime capacity though there are some shortfalls in that key scenario, early and slightly larger shortfalls later in the scenario. and there's no surge capacity under the ari since there's no apaches in the guard or reserve. finally ari works counter to the one army goal of the commission. apaches under ari would be one more area where there's not a connective tissue between the regular army and the guard. we looked at the national guard option as well. substantial surge capability but less wartime capacity than the ari and it does add to costs.
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the commission then looked at wide variety of other options. more battalions than the guard. in the end we recommend that the army maintain 24 battalions of apaches, 20 of them in the regular army, they would each be equipped with 24 aircraft. that's the same as the ari and modify ari to keep four battalions of apaches in the national guard. each of them would be equipped with 18 apache aircraft or helicopters. you need 24 to fight. so what they would do during a mobilization is borrow helicopters from another unit, and it works. call it cross living. it's something the guard does fairly routinely. not all deploying at the same time. the commission option provides more wartime capacity than the ari. yet also provides some surge
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capability. it does add to costs and that's a potential disadvantage. we estimated operating costs go up $165 million a year under the commission proposal. and it would be one time procurement costs of $400 million. we did offer offsets to pay for these added costs. we felt we should in light of the budgetary situation. if those costs have to be offset, we recommend that the army look at the blackhawk fleet. they're very important to the army's war fighting capability but it is a big fleet and so you could reduce slightly the size of that fleet. under ari, the four blackhawk battalions would be transferred to the guard. the commission would transfer only two battalions, the same under the national guard proposal. they transferred two, also. we would retire the other aircrafts to save costs, resulting in about a 3% reduction of the size of the


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