updated 3/30/2012 1:34:32 PM ET 2012-03-30T17:34:32

Guest Host: Chris Hayes
Guests: Dan Dicker, Walter Dellinger, Sherrod Brown


CHRIS HAYES, GUEST HOST: Good evening, Ed. Thanks so much.

And thank you at home for staying with us for the next hour. Rachel
has the night off.

All right. Something happened in Washington, D.C. today that at the
surfaced level was the most banal, the most run of the mill thing in the
entire universe. It was the most expected, least surprising thing and will
probably appear on page A19 of tomorrow`s newspaper.

Today, in Washington, the United States Senate rejected an attempt to
end oil industry subsidies. Why wasn`t that surprising?

Because President Obama was for ending those oil subsidies and so were
Democrats in the Senate. But the Republicans filibustered and so it died.
That three bullet point explanation can basically be said about everything
that has happened in Washington since 2010 or more-or-less.

But if you just think about it for a second, in this particular case,
if you don`t accept it at face value and you instead take this case and
hold it up to the light 15 degrees to see it at a new angle, it is down
right bizarre that this happened.

It is a true mystery that at a time when deficit scare-mongering rules
the Beltway and physical probity is the flavor of the month, when nobody
likes the oil companies, the Democrats have a majority in the Senate, and
the president in the White House, they weren`t able to pluck this
imminently low hanging fruit. It is a mystery, a classic Washington caper.

Why does this particular piece of policy persist? There`s a few
possible reasons. Maybe because this is a popular piece of policy, right?
No. That can`t be it. The NBC News polled on the issue last year and
found that 74 percent of Americans -- 74 percent -- would like to do away
with this policy. Three-quarters of Americans would be in favor of
eliminates tax subsidies for oil and gas industries.

And every year, Gallup polls people on how they feel about various
industries in this country. And out of the 25 industries they polled on
last year, the oil and gas industry came in 24th place, in terms of
favorability.

OK. So the oil and gas industry is not very popular. The policy
itself is not very popular. Well, then, maybe it`s the case that
subsidizing the oil and gas industry is a good piece of policy. It might
be unpopular but economists everywhere recognize it is fundamentally sound.
But that`s not it either. Economists on the left have long argued for the
elimination of oil subsidies.

And here`s the view from the right. "Eliminating oil subsidies: two
cheers for President Obama." That`s from the libertarian Cato Institution.

This from the conservative Heritage Foundation, quote, "Ending all
energy subsidies, including those for oil and gas would be good for
American taxpayers and consumers."

OK. So, it`s actually not universally recognized as good policy.
Maybe this is an industry that`s on life support and needs the help.
Nobody liked the auto bailout but saving the auto industry was good for the
overall U.S. economy. So, maybe it`s not optimal policy and it`s not
popular but it`s just one of those things we kind of need to suck it up and
do because the oil and gas industries are in such dire straits, except --
well, obviously not.

The oil and gas industry is quite literally the most profitable
industry in the history of human kind. The big oil companies essentially
mint money. The most recent quarter, the top five oil companies made a
combined profit of $32 billion.

OK. Well, finally, maybe there`s a just a durable, robust partisan
divide on this issue where people on different side of the aisle just see
the facts of the matter so differently they cannot reconcile them. They
can`t come to the kid of consensus needed to get it over the hump. Maybe
Republicans are just 100 percent fundamentally opposed to the idea of
ending oil subsidies.

(BEGIN VIDEO CLIPS)

GEORGE W. BUSH, FORMER U.S. PRESIDENT: I will tell you, with $55 oil,
we don`t need incentives to oil and gas companies to explore. They have
plenty of incentive.

SEN. MARK KIRK (R), ILLINOIS: I have voted to wipe out many of the
oil company subsidies. They`re doing just fine on their own.

SEN. SUSAN COLLINS (R), MAINE: We simply should not expect taxpayers
struggling to pay their energy bills to continue to subsidize the oil
industry.

SEN. DAN COATS (R), INDIANA: Look, I said everything`s on the table.
That includes ethanol. That includes all subsidies.

UNIDENTIFIED MALE: Oil and gas subsidies?

COATS: On the table.

UNIDENTIFIED MALE: On the table.

SEN. JOHN THUNE (R), SOUTH DAKOTA: If, in fact, they are making such
enormous profits, perhaps they don`t need the support and tax incentives
given to them by the American taxpayer by the United States Congress.

REPORTER: Would you be in favor of seeing some subsidies going to big
oil at times of record profits?

REP. JOHN BOEHNER (R-OH), SPEAKER OF THE HOUSE: It`s certainly
something we ought to be looking at?

REPORTER: Doing away with these subsidies.

BOEHNER: We are at a time when the federal government is short on
revenues, we need to control spending but we need revenues to keep the
government moving, and they ought to be paying their fair share.

(END VIDEO CLIPS)

HAYES: All right. So, that`s not it either. Even President Bush,
the quintessential Republican oilman is on record saying we don`t need oil
subsidies.

In fact, here are the heads of the top five oil companies themselves
admitting on tape under oath what they think of the oil subsidies.

(BEGIN VIDEO CLIP)

SEN. RON WYDEN (D), OREGON: Gentlemen, the president says, and I
quote, with $55 oil, we don`t need oil and gas incentives for companies to
explore. There are plenty of incentives.

Now, today, the price of oil is above $55 per barrel. Is the
president wrong when he says we don`t need incentives for oil and gas
exploration? If I could have a yes or no answer and go down the row?
Beginning with you, Mr. (INAUDIBLE). Is the president wrong?

UNIDENTIIFED MALE: No. I don`t think our company has asked for
incentives for exploration.

WYDEN: Sir?

UNIDENTIFIED MALE: Agreed.

UNIDENTIFIED MALE: In my oral comments, I said we did not need but do
need access.

WYDEN: Just a yes or no.

UNIDENTIFIED MALE: Yes.

WYDEN: Sir? Is the president correct?

UNIDENTIFIED MALE: He`s correct.

WYDEN: Sir?

UNIDENTIFIED MALE: Yes, he is.

(END VIDEO CLIP)

HAYES: All right. Just to recap, this is an unpopular piece of
policy. It`s economically senseless. It`s aiding an industry that`s
already the most profitable in the world, that the Democratic president is
against, that Republicans in Congress are against, the Republicans in the
past have also said they`re against.

And yet repealing -- we can`t seem to repeal it. It fails. It fails
to pass out of even one chamber of Congress. And not just this year, it
fails year after year.

Today, when I was Googling around to find articles like this, I kept
getting almost identical headlines from previous years. It turns out we go
through this almost every single year. In fact, I`m almost positive I
actually guest hosted for Rachel on a previous night when the Republicans
in Congress had knocked down a bill to repeal oil subsidies.

So, when I said earlier this was a caper, that this is a true mystery,
the mystery again is why does this persist? When it`s unpopular policy,
when it`s bad policy, when Democrats hate it, Republicans have in the past
supported getting rid of it, why does it persist?

And the most plausible way to find out whodunit in this case is just
to take a look who voted for oil subsidies today and who voted against
them, and then look at how much money those two groups got from the oil.

Fifty-one members of the Senate, mostly Democrats, voted against the
oil industry today. They voted to repeal the oil subsidies, and
collectively, they received $5 million in campaign contributions from big
oil. The 47 senators who voted to protect the oil subsidies today, they
got this much money from big oil, nearly $25 million.

If this were a game of clue, I think we just solved the mystery. It
was big oil with the wallet in the cloak room.

You see, the oil industry is a very concentrated industry. There
aren`t a lot of pop and mom oil companies around. I mean, there are some.
But it`s mainly the top five oil companies, at least here domestically.

Some of most recent data available shows that in the United States,
the top five oil companies control over half the domestic oil refinery
capacity. It`s not a monopolistic market; it`s what economists would call
an oligopolistic market. It`s a concentrated market.

When Teddy Roosevelt back in the Gilded Age started going around
advancing the idea of breaking up oligopolistic markets and monopolies, he
wasn`t concerned primarily with the thing that we tend to talk about and
obsess over now, which is the way that those kind of market concentrations
affect consumer prices. No. What Teddy Roosevelt worried about was the
way that concentrated economic power is the way that that concentrated
economic power would skew the political system.

"If our political institutions were perfect, they would absolutely
prevent the political domination of money in any part of our affairs.
There are not a few public men who, though they would repel with
indignation an offer of a bribe, will give certain corporations special
legislative and executive privileges because they have contributed heavily
to campaign funds."

In other words, Terry Roosevelt was worried a result just like what we
saw today. Even though we have something as bad policy that everyone sort
of agrees is bad policy. When it comes down to brass tax, we can`t get rid
of it. And why can`t we get rid of it?

You`re looking at it. Teddy Roosevelt`s nightmare come true.

Joining us now is Dan Dicker, a CNBC contributor and author of the
book, "Oil`s Endless Bid." He is an energy analyst with more than 25 years
oil trading experience.

Mr. Dicker, good to have you back here. How are you doing?

DAN DICKER, CNBC CONTRIBUTOR: Call me Dan, Chris, as you always do on
your own show.

HAYES: Dan -- all right. First of all, can we start with a really
basic question? Every time that I report on this and I look at corporate
profits, you compare them, it`s just more profitable than just about
anything else. And I want to --

DICKER: A hundred thirty billion dollars last year alone.

HAYES: In oil profit. Why is it so profitable? Why is extracting
oil from the ground, selling on the market so profitable? My econ 101
instincts tells me it`s profitable, meaning it`s not a fully competitive
market. If it were, the profits would go down.

DICKER: No. It`s cheap to get. I mean, it`s still cheap to get.
The old derrick that you see, with all the guys standing with the black
gold kind of spewing out, the 1920s image, with everybody dancing around,
this is $2 a barrel to get out of the ground -- $2 a barrel.

The most expensive oil to get out of the ground right now is deep
water, very, very ultra deep water like the Horizon incident in BP, way
down, 3 1/2, four miles, that`s $35 a barrel to get out.

So, you can realize why somebody in 2005 would be able to say in front
of a Senate committee, a CEO of a major oil company would be able to say,
once oil prices go above $45, we`re good, we don`t need any more subsidies.

HAYES: Right.

DICKER: So, there`s absolutely no reason for them to provide them,
particularly especially since 2005, we`re up 2 1/2 times the price of oil
where we were back then. Yes.

HAYES: So, the point is that the cost of this remains fairly fixed,
particularly if you`re just extracting oil in something that`s relatively
(INAUDIBLE). But expensive difficult to extract oil like deep water, that
is coming in at a value far below what oil is trading at. And so, the
difference you print in profit, right?

DICKER: Correct.

HAYES: I mean, that`s the basic idea.

DICKER: That`s it.

HAYES: What are the tax incentives on the table that people are
talking about? I was looking at a few of them today. One of them is the
sort of allow yourself, to call yourself a manufacturer, apply for a
manufacturer tax credit, the idea being to incentivize manufactures not to
outsource and off-source their manufacturing.

But, of course, you cannot off source or offshore where a big oil
field is, right?

DICKER: Right. A lot of incentives are very wonky. They are really
accounting tricks on how you can amortize the cost of drilling a rig over
the course of four years, instead of eight years, or 12 years or 15 years.

HAYES: But it means very real money.

DICKER: No, no, no. It`s a very big difference. Of course, the
president isn`t asking for that much. He`s asking for $4 billion. I mean,
if we compare that to the amount of profit that these guys make in a year,
$130 billion in 2011, we`re really talking about small, small amounts of
money.

And even more than that, Chris, what he`s doing is he`s looking to
remove that money, looking to force that money into incentives for
renewables which have run out since the 2009 stimulus package ran out in
September of last year and then again in December of last year. And he`s
looking to move that money into something that`s so desperately needs the
help from something that desperately doesn`t need the help.

HAYES: Finally, what -- do you see any horizon in the future on big
oil`s stranglehold of American energy policy, because it seems to me like
you can try to chip away, you can try to make arguments. You can even try
to pluck this low hanging fruit and it`s so hard to do.

Is there a point at which that power begins to diminish?

DICKER: I think one of the ways you move is take the oil market and
get out of what has become a very global oil market, controlled by these
five. And one way you might do that domestically is to move into natural
gas. Now, I know there are a lot of environmental hurdles that are in
front of it. But it does becomes a much more local mom and pop marketplace
less affected by a lot of the trade and a lot of the money and a lot of the
influence that goes into the political side of this.

HAYES: Although, as the money comes rushing into that market, we will
see how long that lasts.

DICKER: Indeed.

HAYES: Dan Dicker, energy analyst, CNBC contributor, and the author
of the book "Oil`s Endless Bid" -- Dan, thanks so much for coming tonight.

DICKER: Thanks, Chris. Sure.

HAYES: I should note, we did invite representative of the American
Petroleum Institute, who I would have loved to have spoken with to come on
the show tonight, but they informed us that nobody was available.

All right. What did Mitt Romney ever do to the American economy that
the American economy appears to be so determined to extract its revenge on
Mitt Romney? Mitt Romney`s diminishing rationale for running, up next.

(COMMERCIAL BREAK)

HAYES: In the two years he has been running for president this time
around, Mitt Romney has made two main arguments for his candidacy for why
Republicans should nominate him and for why ultimately Americans should
make him president.

First, Mitt Romney says that Barack Obama has throttled job growth and
the economy that he has, to cite a now infamous phrase, made the economy
worse.

(BEGIN VIDEO CLIP)

MITT ROMNEY (R), PRESIDENTIAL CANDIDATE: He did not cause this
recession, but he made it worse.

He didn`t create the recession, but he made it worse and longer.

When he took office, the economy was in recession and he made it
worse.

(END VIDEO CLIP)

HAYES: The central part of Mitt Romney`s campaign, even if he has a
kind of Etch-a-Sketch approach to actually owning those words.

(BEGIN VIDEO CLIP)

REPORTER: How can you continue to say that things are worse when they
really aren`t worse?

ROMNEY: I didn`t say that things are worse.

(END VIDEO CLIP)

HAYES: Well, you did, but what if.

Point being: Mitt Romney is selling himself as a business guy who can
restore a robust economy and bring back jobs.

(BEGIN VIDEO CLIP)

ROMNEY: I`m an economic heavyweight and know how this works and I
will get it going for the American people --

(CHEERS)

(END VIDEO CLIP)

HAYES: The problem for Romney is that the economy is beginning to
work again for the American people. Unemployment has been falling and the
economy has been growing. It seems like firms are finding themselves
finally at long last having to hire more workers.

According from "The Wall Street Journal" and "Market Watch,"
"Corporate America is having trouble getting more output out of existing
employees. That`s not terrible news for the average American."

Certainly would not be terrible news no matter how badly Mitt Romney
might want it to be. And we got roughly seven months to go, seven more
months in which jobs can keep growing, seven more months for Mitt Romney`s
first big argument for himself to get that much weaker.

His second argument which I think is far less attractive to voters is
that President Obama is saddling the nation with debt. The Romney campaign
makes that argument in a new today with a smiling baby, not as cute as
mine, who has no idea the American future is being ruined by some guy named
Barack Obama who just keeps piling up the debt.

In reality, as you can see from this chart by "The New York Times,"
President Obama`s new spending is a fraction of the spending added by
President Bush, the younger. That`s Obama`s spending on the right, a much
shorter list, just eyeballing it.

The Bush appetite for wars and especially tax cuts account for much of
the current debt and Mitt Romney has said he`s open to starting a new war
with Iran, plus he really likes tax cuts.

For that matter, Mitt Romney really likes the Republican fiscal plan,
by which I mean, of course, Congressman Paul Ryan`s budget. Today, for the
second time in two years, House Republicans lined up to vote for the Ryan
budget. That`s the budget, let us all remember, that phases out Medicare.

That`s the budget, and this is my favorite factoid about this budget,
that is the budget that would leave the federal government almost unable to
spend a single dime on anything besides Social Security, health care and
defense by 2050. That`s the budget Mitt Romney has twice now said he loves
last year and just this week.

Mitt Romney loves the Paul Ryan budget makes no sense and that
Republicans keep throwing themselves over the cliff for.

It`s one thing to continue on with really painful gaffes that make you
look rich and out of touch, whether it`s the news about the elevators for
cars that Mitt Romney wants for his other, other mansion in California or
this week`s ha-ha humorous reference to his father laying off workers in
Michigan and then trying to run for governor.

Those mistakes in campaigning will hurt Mitt Romney but they are
survivable. What`s less survivable is for the core rationale of his
candidacy to be annihilated by the economic conditions of the country by
things getting better, by the evidence that with enough political will,
they could even get better faster.

A lot could happen between now and November. But right now, that`s
the trajectory Mitt Romney is on.

Of course, there is one obvious way to criticize the Obama recovery,
and that`s to point out that the gains from it are extremely and unevenly
distributed, with profits outpacing wage gains and share of the national
income going to wages and salary and benefits as low as it has been in
decades. Of course, making that argument is hardly what a plutocratic
private equity baron wants to or can pull off.

Though given Romney`s history, who knows? If looks like it might make
him president, maybe we`ll see him marching with Occupy Wall Street before
this is all over.

We`ll be right back.

(COMMERCIAL BREAK)

HAYES: After six hours, over three days of oral arguments at the
Supreme Court, there was one really surprising theme emerging from the
bench. When people first started raising the issue of constitutionality of
the mandate in the new health reform law, the general consensus among most
legal academics was that it was a non-issue. It was a non-issue based on
the jurisprudence on the interstate commerce clause which is part of the
Constitution that the administration said gave the federal government the
power to regulate health insurance.

The legal scholar types who try to predict how the Supreme Court would
to rule generally agreed that it was going to rule in favor of the Obama
administration, that the court challenges would fail because the insurance
mandate was clearly constitutional. It was seen as, if not a slam-dunk, at
least a layup.

But a funny thing happened in the two years it took of the health
reform law to win its way through the lower courts and land in the nation`s
highest court. Arguments and talking points and just some plain
misapprehensions about what the Affordable Care Act does had formed in
conservative circles and in right wing media and then they somehow crept
into mainstream and then into the court, and ultimately out of the mouths
of sitting Supreme Court justices.

For instance, there is the broccoli argument, the argument that if the
government can force you to buy insurance, they can force you to eat
broccoli, too, or at least purchase it. This has been a very popular
argument on the right.

In fact, Republican Senator Tom Coburn made essentially the broccoli
argument during Justice Kagan`s confirmation hearings.

(BEGIN VIDEO CLIP)

SEN. TOM COBURN (R), OKLAHOMA: If I wanted to sponsor a bill and it
said, Americans, you have to eat three vegetables and three fruits
everyday, and I got it through Congress and it`s now the law of the land,
got to do it, does that violate the Commerce Clause?

ELENA KAGAN, THEN-SUPREME COURT JUSTICE NOMINEE: Sounds like a dumb
law.

(END VIDEO CLIP)

HAYES: Justice Kagan pointing out to Senator Coburn precisely why the
broccoli argument on its merit is silly, because it`s truly hard to imagine
Congress passing a broccoli amendment. That dread broccoli hypothetical
worked its way into the popular vernacular. If the government can force
you to buy insurance, what can it do?

And then lo and behold, there it was in the Supreme Court.

(BEGIN AUDIO CLIP)

JUSTICE ANTONIN SCALIA, U.S. SUPREME COURT: So you define the market
as food, therefore everybody is in the market. Therefore, you can make
people buy broccoli.

(END AUDIO CLIP)

HAYES: It wasn`t just broccoli. Another decidedly Republican
obsession with the Affordable Care Act is it`s length in pages, the idea
that something that`s so long is also therefore terrible and horrible has
been one of Mitt Romney`s favorite tropes this campaign season.

(BEGIN VIDEO CLIP)

ROMNEY: The Obama plan is a 2,700-page massive tax increase,
Medicaid-cutting monster.

It`s 2,000-page bill that takes over health care for all American
people.

This bill is 2,700 pages. There`s a lot of those 2,700 pages I don`t
agree with. And let me tell you, if I`m president of the United States, I
will repeal Obamacare.

(END VIDEO CLIP)

HAYES: Twenty-seven hundred pages. Obviously, it must be terrible to
be so long.

And straight from Republican debate stage to the United States Supreme
Court.

(BEGIN AUDIO CLIP)

SCALIA: You really want us to go through these 2,700 pages?

(LAUGHTER)

SCALIA: And do you really expect the court to do that? Or do you
expect us to give this function to our law clerks? Is this not totally
unrealistic? That we`re going to go through this enormous bill item by
item and decide each one?

(END AUDIO CLIP)

HAYES: Perhaps the most egregious example of partisan political
rhetoric slow creep into the Supreme Court in this case is the case of the
notorious cornhusker kickback. At one point, during the health reform
negotiations, when they needed support, Democratic leaders offered Nebraska
Senator Ben Nelson an exemption from his state for its share of the
Medicaid expansion of the bill and that dubbed the cornhusker kickback
became a really popular health reform punching bag for a while.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Mr. President, they`re outraged that a back room
deal for our state might have been what puts this bill across the finish
line.

UNIDENTIFIED FEMALE: Outrage of the so-called cornhusker kickback for
the state of Nebraska.

UNIDENTIFIED MALE: There was outrage as to why one state got one
deal, and other state got another deal.

UNIDENTIFIED MALE: The one for Ben Nelson there, you know, the
cornhusker kickback.

UNIDENTIFIED MALE: The cornhusker kickback, listen to this, has
become a political cancer.

(END VIDEO CLIP)

HAYES: All right. Everyone was outraged about Ben Nelson`s
sweetheart deal. And yes, that apparently includes Justice Scalia.

(BEGIN AUDIO CLIP)

SCALIA: If we struck down nothing in this legislation but what it`s
called, the cornhusker kickback, OK, we find that to violate the
constitutional proscription of venality, OK?

(LAUGHTER)

(END AUDIO CLIP)

MADDOW: Very funny justice.

But the most amazing thing about Justice Scalia namedropping the
cornhusker kickback is that the cornhusker kickback did not make it into
the final bill. It was removed. No cornhusker kickback. It`s not part of
the law that was before the court.

But Justice Scalia seemed blithely unaware of the fact.

Watching the conservative justices conduct oral argument this week,
you`d almost thing they were reading straight from common threads on
RedState.com.

Charles Fried, the former solicitor general under President Reagan,
has been talking to every reporter who will listen this week, to say how
unbelievable he finds the proceedings, telling Greg Sargent of "The
Washington Post," quote, "I was appalled to see that at least a couple of
them were reporting the most tendentious of the Tea Party type arguments.
The whole broccoli argument is beneath contempt. To hear it coming from
the bench was depressing."

Joining me now is Walter Dellinger, former acting solicitor general
under President Clinton. He also served in the Justice Department, has
more recently filed a brief on behalf of the Democratic leadership in the
House and Senate, defending the Affordable Care Act.

Mr. Dellinger, thanks for being here.

WALTER DELLINGER, ACTING SOLICITOR GENERAL: Good evening, Chris.

HAYES: So, here`s where I want to start with you. I get the sense
that people who are court watchers who have watched this develop over two
years started out basically thinking there wasn`t going to be much of a
problem. And after listening to arguments in the first three days are now
maybe beginning to reconsider that.

What do you think accounts for the mismatch between perceptions early
on about how squarely the law fit within the four corners of current
interstate commerce jurisprudence and where the justices on the Supreme
Court seem to be heading in oral arguments?

DELLINGER: Well, let me preface my answer in saying I`m not certain
how this case is going to come out, and I don`t think you can tell from
oral argument what the court is going to do with the mandate.

Both Chief Justice Roberts and Justice Kennedy did express concerns
with the challenger`s positions. Justice Kennedy said they were coming --
that people who were not buying insurance, who would inevitably be in
commerce were very closely approximately connected to commerce and the
chief justice kept correcting the challengers when they would say that this
law forces people who would not be in commerce into commerce. The chief
justice would correct them saying, no, that`s not the government`s
argument.

HAYES: Right.

DELLINGER: The government`s position is that people would inevitably
enter into commerce.

But I do think I certainly was one of those who thought this was not a
serious challenge. I was heartened by the fact that every really serious
conservative judge agreed that this wasn`t a serious challenge.

Judge Silverman (ph) on the D.C. circuit, Judge Sutton from the Ohio
on the Sixth Circuit, prominent conservative Republican, Judge Wilkinson
from the Fourth Circuit who wrote in the "New York Times," all said this is
an issue about whether this is within commerce among the states, and surely
a regulation of one-seventh of the national economy is part of commerce
among the states. It regulates how are you going to pay for a product in
which virtually everyone is going to be using at some point and says you
need to pay for it in advance.

There were perfectly sound limits that don`t include the right of
Congress to tell people to purchase broccoli or any other similar product
because here, you`re going to use the product. The cost is transferred to
others because the government makes sure at least some minimal health care
is provided to people. And when you transfer that cost to others, it
conflicts with how the market works.

But sure enough, the drumbeat of one-sided argumentation on this
almost seemed to overwhelm the court.

I was very struck with what former Reagan solicitor Charles Fried, one
of the most respected figures in the law, said later today, Chris. He said
what the solicitor-general, who argued the case for the government
encountered Tuesday was, quote, "A barrage of hyperbolic hostile rhetoric
redolent of Tea Party slogans masquerading as questions," unquote.

That`s Charles Fried, who became, after being Reagan solicitor-
general, became a justice of the supreme judicial court of Massachusetts.

So, I wish I knew more how this tide had tended to come into the court
and make this seem like such a political case.

HAYES: Well, let me ask you that because I think there`s -- I have
been close to Supreme Court clerks and spent some time around the Supreme
Court. I know there is this gap of perception.

People around the court, you know, are very zealous and they will tell
you, this is not a political body. Everyone thinks we`re a political body
and everyone thinks this is just partisan. But actually, we`re not.

And there`s a perception outside that basically, liberal justices will
vote one way, the conservatives will vote the other, and Kennedy will
decide because he`s in the middle.

But how can they defend this sort of non-political vision of the court
when the most looked at cases are ones like this?

DELLINGER: Well, you know, if I tried to defend it, I would say the
justices come to the courts from their political parties with an approach
to law that leads them to favor different conclusions. Some people are
more comfortable with federal power, some come from a background where they
see virtues in state sovereignty. Their parties nominate them. They
naturally divide.

I think what was striking this week, though, was something different.
The justices seem to be delving into issues of social and economic policy
that they are very ill-equipped to handle as members of the court. Some of
the justices seemed not to understand why and how this works to expand
insurance coverage to 30 million Americans.

I think there was a sense that I got that some of the justices really
didn`t understand how the insurance market works. They thought this was
just a subsidy to insurance companies without understanding that the
linchpin of the bill, the provisions that grant people the right to
purchase insurance when they want it works only if you give people an
incentive to buy insurance in advance.

I think some of the justices didn`t seem to even understand how that -
- how that worked. And it seems that -- I heard tremors reminiscent of the
1930s, as justices seemed to suggest that there was something illegitimate
about programs that may subsidize one group at the expense of another.
That goes back to Social Security, which even a conservative court upheld
in 1937.

So, the court at times sounded very much like a throwback to the 1920s
this week.

HAYES: Walter Dellinger, former acting solicitor-general under
President Clinton -- thanks so much.

DELLINGER: Thank you.

HAYES: The mega million lottery is up to something more than half a
billion dollars this week, and depending on who wins, the person who takes
home all that dough will not even be close to rich as the people who are
financing certain Republican campaigns.

Sheldon Adelson who has kept Newt Gingrich on TV for the last few
months speaks on tape and tells you what he thinks of the field of
candidates. Democracy as it stands, post-Citizens United, next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SHELDON ADELSON, CASINO OWNER/GINGRICH SUPPORTER: I know Rick. I
like him. We`re friendly. But I got to tell you something, I don`t want
him running my country.

Romney, again, the problem with Romney is -- and I`ve talked to Romney
many, many times, as recently as he was in Vegas for the caucuses just a
few weeks ago. He`s not the bold decision-maker like Newt Gingrich is. He
doesn`t want to -- every time I talk to him, he says, well, let me think
about it. Everything I`ve said to Mitt, let me look into it.

I`m in favor of Newt Gingrich because I like people who make
decisions. He`s a decision-maker. It appears as though he`s at the end of
his line because, I mean, mathematically, he can`t get anywhere near the
numbers and it`s unlikely to be a brokered convention.

(END VIDEO CLIP)

HAYES: That`s my favorite piece of tape from this week. Casino
multibillionaire Sheldon Adelson whose millions of dollars made Newt
Gingrich the technically viable presidential candidate he used to appear to
be -- until Sheldon Adelson determined that Newt Gingrich was at the end of
his line.

Still, more millions of Mr. Adelson`s dollars will probably help Mitt
Romney or candidate he believed to take on President Obama this fall.
That`s democracy in this election cycle, in almost every race in the
country. Sheldon Adelson and people like him don`t have to have strong
feelings about you, but if they hate your opponent enough to wear a button
like this, you are in the money.

And Massachusetts Senator Scott Brown and likely Democratic opponent
Elizabeth Warren made a public agreement not to allow third party Adelson-
type money into their race, and those two Citizens United have to this
point insulated Massachusetts from the effects of the Supreme Court`s
Citizens United decision.

But everywhere else, everywhere else, it`s government plainly and
boldly of, by and for the ultra rich.

Joining me now is someone who knows how it`s going down, Senator
Sherrod Brown, Democrat of Ohio, who is in the midst of his own election
campaign.

Senator Brown, thanks for being on tonight.

SEN. SHERROD BROWN (D), BROWN: Chris, good to be back. Thanks.

HAYES: Senator, tell me about the sort of state of play of this kind
of dark money, third party money in your Senate race.

BROWN: You see Karl Rove kind of conducting the orchestra. Karl Rove
-- he sends this group in for three weeks and they spend $400,000 a week
and then he sends another group in. They don`t ever seem to overlap.

In my race, since about November, they spent more than any race in the
country, they spent around $5 million. They`re now spending, we think,
about $600,000 a week. They`re running in basically every Ohio market,
Cleveland, Columbus, Cincinnati, Youngstown, Toledo and even the West
Virginia, southern Ohio markets.

So, they`re just flooding the air waves with attack ads.
Interestingly, there`s a national group could PolitiFact that does fact-
checking, nonpartisan, won a Pulitzer Prize, plays it straight, plays it
fair, they repeatedly found given their lowest truth rating they call
"pants on fire" over and over again in these ads, the station still runs
them, a lot of money there, and Karl Rove keeps writing them and keeps
sending them out.

So, it`s just the way they played now. But it`s $5 million and it`s
unrelenting and it will keep going.

MADDOW: So, then the question, we have a long relationship with
PolitiFact that we`re not going to do now on this program.

But it seems like -- what ends up happening is the incentive structure
then is what, what do you? Do you try to raise more money yourself from
small donors? Do you basically try to get your own super PAC? Is there a
friendly billionaire who owes you a favor you can call up and ask to come
in and match that kind of spending? What is -- what is the next move when
you`re under assault in this way?

BROWN: Well, one of the next moves is we will have the best
grassroots operation in the country, in Ohio, working with the president --
on our own but working with some synergy with president`s campaign, with
President Obama`s campaign.

Another part of this is to step up our fund-raising. People have
responded online and responded in larger amounts, too, but we do very
aggressive online fundraising. We continue to build an operation.

We ask people to come and sign our petition to begin to fight against
this Citizens United case, SherrodBrown.com. We got 130,000 people sign on
to SherrodBrown.com. I encourage your viewers and listeners to do that.

On every level, we`re fighting back. We don`t have a billionaire. I
don`t have anybody that`s going to just come in and write a big check. But
whether we hope to get all kinds of outside help, it hasn`t happened yet.
But we`re doing everything we can control, which is a lot in a campaign --
the grassroots effort, small dollar fund-raising and the larger amounts we
can raise, $500, $1,000, that kind of thing, we`re doing.

And we`re doing OK. But this kind of millions of dollars from special
interests -- we don`t, is it oil company money? Is it companies that
outsource jobs? Is it Chinese money, because my work on the Chinese
currency bill, the biggest bipartisan jobs bill that passed the Senate last
year?

All these things were pushed and I continue to do my job in the
Senate. We`re always focused on job creation. And we`re aggressive -- I`m
aggressive as a candidate.

HAYES: Senator Sherrod Brown, Democrat from Ohio, I don`t think --
it`s been a while since you lost a race, if I recall your bio correctly.

BROWN: I lost a race, I don`t want to do it again. I lost a race 20
years ago or something like that. You know, I think that -- I think if you
do your job right, my view in politics, a bit of an old adage, I didn`t
make it up. But, you know, the best politics is to do a good job.

And we -- just this week, I brought 50 college presidents to
Washington. I`ve done it five straight years since I`ve been in the
Senate, where we work on how do we help colleges and universities? Two
year, four year, private schools, community colleges, how do we help them
work with businesses to create jobs? All those kinds of things.

HAYES: Senator Sherrod Brown, thanks so much.

BROWN: Thanks. Good to be with you. Thanks.

HAYES: The best new thing in the world today coming up.

(COMMERCIAL BREAK)

HAYES: The shooting death of 17-year-old Trayvon Martin has gripped
the country. Thousands of people have rallied in Sanford, Florida, where
Trayvon Martin was killed. Thousands more have marched in cities across
the country in support of Martin`s family.

Given the facts as we know them, there is rightly a deep, deep sense
of injustice and thirst for accountability. There`s also a natural sense
of curiosity about what exactly happened on the night of February 26th when
George Zimmerman shot and killed Trayvon Martin.

The details about this case are coming to light in a haphazard and
frustrating fashion. Earlier this week, Martin`s high school records were
leaked to the media by as-yet an unidentified person. Records show Martin
had been suspended, which proves absolutely nothing, but made big
headlines.

Also earlier this week, George Zimmerman`s account of what happened
was leaked to the press. He claimed Martin attacked him. But, of course,
Martin is no longer alive to refute that account.

Then there`s a video released today also leaked to the media, ABC News
this time, of Zimmerman at the police station on the night of the shooting.
People have been watching the tape and trying to figure out if Zimmerman
seems injured like he says he was or not.

None of these leaks, none of these pieces of information is helping us
figure out what exactly happened the night Trayvon Martin was killed.
Again, when one side is no longer alive and able to sell his side of the
story, it makes sorting through the supposed facts all the more difficult,
and, in fact, that`s exactly the role a trial is supposed to play. But
there can`t be a trial until there is an arrest.

And one of the things we know for sure about this story is when asked
directly why they did not arrest George Zimmerman, why didn`t treat this
case like a potential murder or manslaughter case, the police responded,
the reason they did not arrest him is because Florida`s stand your ground
law explicitly bars arresting a person if the person credibly claims that
they did what they did because they feared for their life.

According to the law, "A law enforcement agency may not arrest the
person for using force unless it determines there is probable cause that
the force that was used was unlawful."

Florida "Stand Your Ground" law which Florida pioneered and then
Governor Jeb Bush signed into law is now law in something like two dozen
states.

According to "Tampa Bay Times," since the law went into effect,
justifiable homicides reported to the Florida Department of Law
Enforcement, have increased threefold. The law has been used to excuse
killings in bar brawls, gang shootouts and road rage incidents.

In the wake of the Trayvon Martin shooting, there`s been a focus on
"Stand Your Ground" laws and cases which use the "Stand Your Ground"
defense. It`s clear these laws have resulted in some shocking cases.

When you started digging into the facts in some of these cases, you
find a shocking case isn`t an anomaly. The laws reliably produce them.

Take the case in Texas of Joe Horn, which is a case I`ve talked about
on my show. Texas passed their "Stand Your Ground" law on September 1st or
it went into effect September 1st, 2007. Mr. Horn saw two men breaking
into not his home but his neighbor`s home. He called 911. There`s a bit
of the tape.

(BEGIN AUDIO CLIP)

DISPATCHER: I want you to listen to me carefully, OK?

JOE HORN: Yes.

DISPATCHER: We`ve got officers coming out there. I don`t want you to
go outside that house and I don`t want you to have that gun in your hand
when those officers are poking over there.

HORN: I understand that, OK, but I have a right to protect myself,
too, sir. And you understand that. And the laws have been changed in this
country since September the 1st and you know it and I know.

I have a right to protect myself. He`s coming out the window right
now. I got to go, buddy. I`m sorry, but he`s coming out of the window.

DISPATCHER: Don`t go out the door. Mr. Horn? Mr. Horn?

HORN: Goddamn it, they just stole something. I`m going out the
window. I`m sorry. I ain`t let them get away with this. They stole
something. They got a bag of something.

DISPATCHER: I don`t want you going outside.

HORN: Well, here it goes, buddy. You hear the shotgun clicking and
I`m going.

DISPATCHER: Don`t go outside.

HORN: Hello. You`re dead.

(GUN SHOTS)

(END AUDIO CLIP)

HAYES: Joe Horn killed two men, 30-year-old Diego Ortiz and 38-year-
old Hernando Torres. The grand jury decided not to charge Mr. Horn. His
defense was that he feared for his life.

And there`s what might be the most shocking "Stand Your Ground" case
also from Florida. The grace of Greyston Garcia (ph). Today, the judge in
the Garcia case issued a written statement.

The details are as follows Mr. Garcia caught a man named Pedro Roteta
in the process of stealing the radio out of his car. The would-be car
radio thief, Mr. Garcia grabbed a knife and chased him, chased him for more
than a block. Mr. Garcia says the would-be thief at one point swung a bag
of radios at him and he then stabbed and killed the man he caught trying to
steal his car radio.

Quote, "Garcia did not call police or 911 but went home and fell
asleep. He later sold two of the car radios and hid the knife."

He sold two of the stolen radios and hid the knife he used to stab and
kill someone he chased down.

Circuit Judge Beth Bloom (ph) in her ruling wrote that Mr. Garcia was,
quote, "well within his rights to pursue the victim and demand the return
of his property. The defendant had no duty to retreat and could lawfully
pursue a fleeing felon who has stolen his property."

This is the kind of justice and fact-finding the "Stand Your Ground"
law encourages. That does not sound like the rule of law at work. It
sounds like privatization of the state`s most core function. It sounds
like chaos.

(COMMERCIAL BREAK)

HAYES: Best new thing in the world, this man, 98-year-old retired
lobsterman from Mystic, Connecticut, named Captain James Arruda Henry. He
was pulled out of school in the third grade and put to work and never
learned to read, hid his literacy, faking it with restaurant menus, talking
his way out of having to take a written driver`s test, until he was in his
90s.

Two years after he finally decided to learn to read with the help of a
tutor, James Henry not only learn to read, he wrote his first book. It`s
called "In a Fisherman`s Language."

Here`s a sample, he recounts of death of a fellow lobsterman, his
cousin named Hank, who fell overboard in a freak accident. "The water was
so clear I could see Hank, but he was way down deep, and I`m getting
smaller every second. I knew I wouldn`t be able to hold my breath just to
get to him never mind coming up. He was so deep he looked the size of a
kid. We couldn`t save him. Marion and I just stood there and watched him
disappear."

Captain Henry`s book has sold about 3,000 printed copies. It`s also
available as an e-book, "In a Fisherman`s Language" by Captain James Arruda
Henry -- best new thing in the world today.

That does it for us. Rachel will be back tomorrow. I`ll see you this
weekend, Saturday and Sunday at 8:00 a.m. Eastern.

It`s time for "THE LAST WORD" with Lawrence O`Donnell. Have a great
night.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
BE UPDATED.
END

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