Plenary Session Transcripts

• Economic Development and Commerce Committee (EDC) – Productivity and Competitiveness: Creating Conditions in the States for Global Success
• Education, Early Childhood and Workforce Committee (ECW) – Working Together to Keep Students Safe from Online Predators; and Update on "No Child Left Behind"
• Health and Human Services Committee (HHS) – Update on SCHIP; and Health IT
• Natural Resources Committee (NR) – Gubernatorial Policy Tools to Address Climate Change
• Other Sessions – Governors and Innovation America Task Force members business session and meeting; and special session: "From Postsecondary Education to Innovation"
• 2006-07 Chair Arizona Gov. Janet Napolitano's Initiative - Innovation America
• Plenary Session Discussion Subjects - Fostering Innovation through Education and Investment; and Judicial Independence

To close out the year-long initiative, discussion was held on private sector participation in education advancement. Randall Stephenson, Chairman of the Board and CEO of AT&T. Stephenson likened sustainable economic growth to a three-legged stool requiring the balance of all three legs to be workable. The first leg is communication, which helps accelerate commerce; the second leg represents open markets that allow capital to flow freely without undue or unnecessary regulation or restraint; and the third is a workforce well-educated and prepared to keep up with advancing technology. Stephenson went on to comment that the U.S. education system has fallen flat and requires considerable investment to ensure American competitiveness in the future.

Next, Dr. Eric Schmidt, Chairman of the Board and CEO of the internet search engine "Google," asked governors to think of information technology as a way by which people can actually change their views of government. As high-tech communication systems penetrate American households at an ever-increasing pace, and more and more data can be stored on smaller and smaller pieces of equipment, the proliferation of information provides the opportunity to educate and serve Americans as well as to educate politicians with regard to what the citizenry is thinking. Dr. Schmidt cited the example of Arizona, where in less than two days, access to state services was made possible via a search engine in addition to being accessible by going directly to the state's web site. Dr. Schmidt urged governors to encourage the expansion of broadband, as well as to devote a portion of their budgets expressly for innovation.

In response to Randall Stephenson's argument against undue or unnecessary government regulation or restraint of open markets, Governor Phil Bredesen of Tennessee asked what the states' role should be in ensuring access. Stephenson responded that the more competitive markets become, the less government intervention is required. But Governor Edward Rendell of Pennsylvania noted that without regulation, there are some communities into which the market will not go—rural communities among them—because those communities will not bring profit. Stephenson answered that serious consideration should be given to subsidizing the market to encourage broader coverage.

Governor Jon Corzine of New Jersey asked the speakers' views on Internet regulation to prevent predatory behavior. Dr. Schmidt responded that most of the Internet activities to which people object are illegal under state and federal law apart from the Internet, so the key is to develop enforcement techniques that apply to on-line activity. He mentioned that his own company, Google, can within certain legal limits provide information to help apprehend those who have committed criminal behavior over the Internet.

Governor Kathleen Sebelius of Kansas asked for suggestions as to how—in addition to polling—governors could use technology to reach out to their citizens. Dr. Schmidt responded that most states have overlapping citizen lists, which tend to result in a person being viewed in separate categories instead of as a whole. Understanding the danger in addressing the privacy issue, Dr. Schmidt stated that it would be helpful if states had a better model by which to identify and get to know their citizens. He reiterated the importance of using the Internet to reach out to citizens on important issues.

Chair Napolitano began the closing plenary session on "Judicial Independence" by noting that five spouses of current governors are or have been members of the judiciary. She went on to refer to the U.S. Supreme Court's ruling in Republican Party of Minnesota vs. White, in which the court ruled 5 to 4 that states should not restrict judicial candidates from expressing their views on political topics. As a result of the case, many states reversed limits on speech for judicial candidates that had been integral to their states' codes of judicial conduct. She went on to introduce fellow Arizonan and U.S. Supreme Court Justice Sandra Day O'Connor (Ret.), a leading voice on the topic of judicial independence. Justice O'Connor stated that the effectiveness of judges depends on the knowledge that they will not be subject to retaliation for their judicial acts. She quoted founding father James Madison accordingly: "An independent judiciary is an impenetrable boulder against every assumption of power in the legislative or executive." But she noted that the term ‘independence' must be confined in the case of the judiciary to judicial decisions that are fair and impartial base on the law, not on the judges' personal preferences. She then raised the concern that while the key to protecting the judicial function in our system of government lies in the education of our citizens, our educational system does not place enough emphasis on knowledge of our national and state governmental structure. She urged governors to take actions to improve the education system in that regard through the use of such methods as debates, mock trials, participation in student government, not to mention computer technology that will engage student interest more than textbooks will. She referred to a project in which she is involved—with the participation of Arizona State University and Georgetown University—that is developing a computer-based course on our courts, aimed at the middle-school level. She also urged governors to help preserve and protect judicial independence.

Next, Tom Phillips, former Chief Justice of the Texas Supreme Court, spoke to the governors about judicial selection, a process that differs from state to state. Phillips began by stating that the political branches of government alone cannot guarantee freedom and security. The system depends on the rule of law and judges to enforce that law to ensure that electoral winners do not infringe on the rights of political minorities. Phillips went on to speak to the difficulty of selecting men and women for judgeships. He said that some limits on judicial behavior inhere in the structure of the judiciary itself, among them the fact that juries are involved, trial court judgments are almost always subject to appeal, and appellate courts sit in groups that require a majority vote and justifications for rulings. But in addition, every state has promulgated some type of code of judicial conduct and established commissions to oversee that conduct. Nonetheless, he said, the increased politicization of the judicial branch has imperiled these norms, with political parties and interest groups seeking to influence who sits on the bench. And the decisions of federal courts over the last five years to strike down restrictions on judges' expression of their views has resulted in interest groups demanding that judicial candidates announce their positions on issues. He suggested to governors that when faced with a judicial ruling with which they disagree, they should avoid political criticism of the decision and instead emphasize that judicial decisions can be appealed or their effects overturned by a new statute or constitutional amendments. He also urged governors to make sure that judges in their states have the necessary resources to process cases fairly, efficiently, and effectively. And finally, he said that governors should explore whether their states' methods of judicial selection are producing the best possible judges. He argued against election of judges—whether partisan-based or not, and while legislative elections or gubernatorial appointments do free judges from the campaigning process, they are only as good as the appointing authority. That leaves one alternative: merit selection, under which a governor appoints judges with or without a pre-screening by a commission, and judges retain their jobs by running in a retention or yes/no election. Phillips pointed to a number of studies by well-respected organizations involved with law and lawsuits, the results of which suggest that merit-appointed judges are the most professional in their consideration and judgment of cases. He went on to say that no state had ever abandoned merit selection of judges after adopting it, while states with other selection methods have changed them over time.

During discussion, one concern did arise over the merit selection system: the fact that there can be regulatory capture of the commissions that are responsible for the selection process. In some states, commission members are elected, while in others, they are appointed. Phillips emphasized that whichever is the case, it is important for governors to take proactive leadership in ensuring that that the commission contains a diverse spectrum of views.

In his address, Justice Phillips referred to a case in South Dakota in which there had been an organized effort to attack judicial independence. South Dakota Governor Mike Rounds explained the case, in which enough signatures had been collected to get an initiative on the ballot to amend the South Dakota Constitution to revoke judicial immunity from public lawsuits. With sufficient opposition from a broad range of officials in both the public and private sectors, the amendment was defeated.

Justice O'Connor commented that a solution to problems such as that which arose in South Dakota would be to tighten requirements for initiatives and referendums to be considered.

In response to a question about federalism, Justice O'Connor emphasized her view that the power of states under the U.S. Constitution should be protected. She paraphrased former Justice Brandeis [who coined the term ‘laboratories of democracy' to describe states] by arguing that our nation is helped when states experiment with ways to deal with national problems.

Hon. Tom Phillips, former Chief Justice of the Texas Supreme Court, said: "Why should a democracy remain committed to [a] process of judicial independence…? The simple reason…is that the democratic branches alone cannot guarantee freedom and security. Without the rule of law and strong institutions, including judges, to enforce the rule of law, electoral winners have a nasty habit of trampling on the rights of their vanquished opponents, and democracy alone certainly cannot ensure economic progress. There is not capital investment in any society where contracts are not fairly enforced and government expropriations are not tightly regulated."

U.S. Supreme Court Justice Sandra Day O'Connor (Ret.) said: "…the trend for over 200 years now has been for the national Congress and government to take over traditional activities of state government, and that trend has seemed almost on an inexorable track. And in my close to 25 years at the Supreme Court I…tried to preserve what I thought was a proper role for the states, and it was…uphill going insofar as you are dealing with the commerce clause power of the federal government. The most recent case decided by the court…while I was still sitting that…went against the states' power was the medical marijuana case out in California where, again, the courts said, well, the feds can regulate it and prohibit the states from even making a medical exception, and I thought that was on the wrong track. [Note: The case to which Justice O'Connor referred was Gonzales v. Raich, in which the Supreme Court ruled that under the Commerce Clause of the Constitution, the federal government does have the authority to prohibit the use of medical marijuana.] The court has been rather divided on the subject of federalism questions, as you all know, and I think Chief Justice Rehnquist and several of us tried pretty hard during the years to preserve a role for the states, but…it's been an uphill battle, because the trend is certainly the other way. And I don't think you should withdraw from a position of asserting the proper role of the states in our system, because the states are closer to the people, and it is absolutely true that it helps our nation when states themselves are experimenting with ways to deal with national problems such as health care."

Selected Policy Positions Adopted:
(1) underscoring support for state-federal partnerships to encourage research and development investments for the purpose of stimulating job growth and economic expansion; (2) recommending the use of technology to speed the passage of frequent international travelers through U.S. ports of entry; (3) calling for timely reauthorization of the State Children's Health Insurance Program and for the provision of increased funding to ensure that eligible populations, as determined by the states and territories, have access to health insurance coverage; (4) calling on the federal government to work with states in identifying national standards with respect to health information technology systems and providing the resources necessary to ensure their successful implementation; (5) calling on Congress to adopt legislation for a national, performance-based, multi-pollutant approach to reduce emissions from all sources of air pollution nationwide and to appropriate increased funding for state air pollution control programs at a level sufficient for states to perform their responsibilities; and calling on the U.S. Environmental Protection Agency to ensure that federal measures are designed to maximize public health and environmental benefits while providing states the administrative flexibility and resources to design and implement their programs in a cost-effective manner consistent with the Clean Air Act; (6) calling for Congress to expand the alternative fuels standard, enhance transportation fuel efficiency, extend the renewable energy tax credit, incentivize carbon capture and sequestration, enhance energy efficiency and conservation, and increase funding to promote advanced technologies; (7) urging that federal funding for homeland security be increased as related federal requirements imposed on state and local governments are increased; and recommending the establishment of a central office for state and local relations at the U.S. Department of Homeland Security, as well as partnering with governors and their state directors of homeland security to develop grant guidance and policy; (8) expressing the governors' continued support for discussions with state and local government representatives and the communications industry to develop mutually agreed upon national guidelines for state taxation of communications services and service providers that encourage investment, innovation, and competition; preserve state authority; provide necessary resources; and advance the public interest; and (9) raising the issue of access to affordable, safe, and effective biosimilar pharmaceutical products under the Medicaid program.