William H. Rehnquist: We'll hear argument now in Number 93-1525, Lebron v. National Railroad Passenger Corporation. Justice Breyer has asked me to announce that he is in England because his mother-in-law has passed away and the funeral is being held today, but that he will participate in the cases argued today, listen to the arguments on tape. Mr. Cole.
David D. Cole: Thank you, Mr. Chief Justice, and may it please the Court: This case asks whether Amtrak was subject to the constraints of the First and Fifth Amendments when it refused to display Michael Lebron's advertisement in Pennsylvania Station, New York, because of its political content. If Amtrak is correct that it is a private actor, then an entity wholly owned by the United States, managed by the U.S. appointed board, dependent on massive United States subsidies for its very survival, would be constitutionally free to engage in blatant viewpoint discrimination.
William H. Rehnquist: Mr. Cole, we don't have before us, do we, any question as to whether, if Amtrak is indeed a Government entity as you contend, whether it would be permissible for it to take the action that it did here?
David D. Cole: That's... that's correct, Your Honor. The... Amtrak's argument is that no matter what its speech policies are, they are not subject to constitutional review because they are not a State actor.
William H. Rehnquist: And you say they are subject to constitutional review, but the question of, if they're subjected to that constitutional review, is it permissible or not, is not before us.
David D. Cole: That would be decided by the First Circuit... I mean, by the Second Circuit on remand.
Sandra Day O'Connor: Mr. Cole, in the proceedings in courts below, it appeared to me that your client waived any argument in the nature of a direct argument that Amtrak is a Government agency, and instead proceeded on a rather different theory.
David D. Cole: Well, we didn't waive any claim, Your Honor. This Court held in Yee that one waives claims, not arguments. The claims that we have made from the outset are that Mr. Lebron's First and Fifth Amendment rights were violated because Amtrak is a Federal actor. We argued that Amtrak was a Federal actor because it is owned and controlled by the United States, the very argument that we are making here today. In the--
Sandra Day O'Connor: I understood, at least, that in the courts below the position was taken that we don't contest the fact here that... and make the point that Amtrak is an agency of the Federal Government. Instead, we say that there was a sufficiently close nexus here that we will approach it on a different basis.
David D. Cole: --In the lower courts, the Second Circuit had held that Amtrak was not a governmental entity for various purposes. We did not contend that Amtrak was a governmental entity as such for statutory purposes, et cetera, but what we did argue--
Sandra Day O'Connor: Are you trying to argue that here--
David D. Cole: --No. No, for--
Sandra Day O'Connor: --because it looks like it--
David D. Cole: --No.
Speaker: --in the brief.
David D. Cole: For statutory purposes, we believe that whatever Congress labels, Amtrak decides what statutory consequences apply to Amtrak, and that, and the fact that Congress said that Amtrak is not an agency establishment or a department of the United States means like certain laws like the APA, et cetera, the Federal Tort Claims Act, would not apply. However, we have always maintained that because this entity is owned and controlled by the United States, it must be subject to the constitutional constraints that apply where the Government is responsible for a particular action.
Anthony M. Kennedy: Mr. Cole, I suppose in the abstract we could approach the issue in either of two ways. We could approach it by asking the question whether, for purposes of controlling advertising policy, Amtrak should be regarded as a Federal entity, a characterization way of approaching the case, and the other way would be to approach it on the assumption, arguendo, that Amtrak is private, and yet ask the question whether the control by the national Government through the appointment process and so on is so great that the relationship, the nexus, however you want to call it, is established. Would it make any difference, for the outcome of this case, whether we went the characterization route of analysis as distinct from the relationship to the undoubted national Government kind of analysis?
David D. Cole: No, as long... we believe that the question under the State action analysis is, is the Government responsible for the conduct that is being challenged? We believe that when you look at the facts of Amtrak, its ownership and control by the United States, the board, the funding, et cetera, it is... the Government is responsible for this conduct, for the policy that we have challenged here. However, whether you call it private or public is in some way just a label. The question--
Ruth Bader Ginsburg: Mr. Cole, are you saying this is in effect a centaur-like entity, that it is part Government and part not Government, it depends on which purpose--
David D. Cole: --Our position, Your Honor, is that Amtrak is a... for constitutional purposes it must be subject... it is a Government actor.
Ruth Bader Ginsburg: --How about for sovereign immunity purposes? It would not be immune--
David D. Cole: For sovereign immunity purposes it's not immune because Congress established... gave it the right to sue and be sued, and therefore it's not immune under the sovereign immunity principles, and there are various... the question of whether an entity is an agency determines various statutory things, like whether the APA applies, whether the Federal Tort Claims Act applies, whether procurement laws apply, whether financial accounting laws apply... those are statutory questions to which Congress' label is obviously a very central question. The question before this Court, however, is, should this entity be constitutionally responsible when it denies advertising in Penn Station on--
Antonin Scalia: --I assume its directors, then, under your theory, would have to be appointed by the President and confirmed by the Senate. That's a constitutional provision as well. You say this is a--
David D. Cole: --We say that for the question of State action, for the question of governmental responsibility--
Antonin Scalia: --Oh, no, you've said more than that. You've said, for constitutional issues--
David D. Cole: --Right.
Antonin Scalia: --Congress can't change it by just saying so, and that makes sense to me, but the only constitutional issue in the world is not the First Amendment. There are other provisions of the Constitution, one of which is the Appointments Clause.
David D. Cole: That's correct.
Antonin Scalia: So I assume that the managers of this Federal agency would have to be appointed by the President and confirmed by the Senate, is that right?
David D. Cole: Well, we--
Antonin Scalia: So Amtrak is unconstitutionally established.
David D. Cole: --Well, I think... I think, two points in response to that, Justice Scalia. First, the question of whether Amtrak is constitutionally responsible for the conduct challenged here cannot turn on whether Amtrak is constitutionally composed. We don't argue that it's not constitutionally composed.
Speaker: No, I--
David D. Cole: Second of all, we do believe that it is constitutionally composed because the directors of Amtrak are appointed either by the President or by the Secretary of Transportation and would be inferior officers under the Appointments Clause.
Antonin Scalia: --Inferior officers under the Appointments Clause? Why are they inferior officers?
David D. Cole: Well, the Congress has deemed that they shall be appointed by the Secretary of Transportation. They--
Antonin Scalia: So whenever Congress makes that appointment disposition the agency automatically becomes an inferior agency, even if it isn't an inferior agency, or the officers become inferior officers even if they aren't?
David D. Cole: --I think the central point, Your Honor, is that whether Amtrak is constitutionally responsible for its actions in this case does not turn on whether its board is constitutionally composed.
Antonin Scalia: I didn't suggest that, but I'm just exploring the consequences of your thesis that Amtrak is a Government agency. One of the consequences, it seems to me, is that it is unconstitutionally composed, which may have consequences elsewhere, though not with respect to its First Amendment liability.
David D. Cole: Well, we believe that if the Court were to conclude that the officers were inferior officers, it would be permissibly composed, because the executive department, through the President or the Secretary of Transportation, appointed--
Antonin Scalia: But you concede that the executive does not control Amtrak. Nobody but the directors really decide what Amtrak does, isn't that right?
David D. Cole: --Well, no--
Antonin Scalia: Except by a general law. I mean, Congress could pass a law, but they can control a lot of things.
David D. Cole: --Well, no, in fact the United States owns all of Amtrak's preferred shares and has 99 percent of the votes, so the United States, as essentially the sole shareholder of Amtrak, has the ultimate responsibility for what Amtrak does. In addition, the United States appoints the entire membership of the board, so--
Antonin Scalia: But it can't tell those members what to do. It can throw out the members and put in new members--
David D. Cole: --Right. Right.
Antonin Scalia: --but ultimately those members make the decisions.
David D. Cole: That's right, and they are--
Antonin Scalia: Nobody else in the United States Government makes the decisions, right?
David D. Cole: --That's right, and no--
Antonin Scalia: And yet you say these officers are still inferior officers, even though they make the final decision.
David D. Cole: --I'm... we're not taking a position, Your Honor, on whether the board is constitutionally composed or not. What we believe is that that question is a separate question from whether it ought to be constitutionally accountable, and certainly--
Antonin Scalia: I agree with that. I'm not questioning whether it's a separate question. Mr. Cole, what is the tenure of the directors?
David D. Cole: --The directors are appointed to a range of fixed terms. Some, I think, are appointed to 2-year terms, some to longer terms.
John Paul Stevens: Can they be removed?
David D. Cole: The statute is silent as to removal, and so the removal power would presumably be implied under the case law. Amtrak is not only owned by the United States, its board is not only appointed by the United States, it would not be here were it not for massive Federal subsidies that Congress has provided through the years. Today, its subsidy is about 1 billion dollars a year. That's half of what the State Department gets. It's six times what the United States Postal Service got in 1994. Its property, valued at 3.4 billion dollars, including Penn Station, was all purchased by the United States with tax dollars. It is subject to governmental obligations, obligations that no private entities are subject to... the Inspector General Act, the Government and Sunshine Act, the FOIA. Congress micromanages Amtrak. It sets goals for its on-time performance, for how fast the trains should go, for who can be appointed as officers and what they shall be paid, for how much of a profit it ought to make. It only has to cover 61 percent of its costs.
William H. Rehnquist: Well, what sort of guideline has Congress set for its scheduling, train schedule?
David D. Cole: It's supposed to... it's trains are not supposed to be any later than 15 minutes for each stop, Your Honor.
William H. Rehnquist: That's by act of Congress.
David D. Cole: Yes. [Laughter] In short, this is an entity that has no independent will of its own.
Antonin Scalia: I don't understand your point. Your point is that anything that the Government micromanages becomes the Government?
David D. Cole: The point is, Your Honor, and the purpose of the State action inquiry, is to assign governmental responsibility. Ordinarily, in a State action case, you have a clearly private actor, and you have some State influence, and the court's role is to determine whether the State is responsible--
Antonin Scalia: Suppose you have enormous State influence, the Government, by statute, micromanages a particular industry. Does that industry become the Government?
David D. Cole: --By... if it's... if... the mere fact of regulation, even extensive regulation, the Court has held, is not sufficient to establish State action, but this is not simply a question of mere regulation. When you have the board appointed by the United States, you have the ownership of the shares wholly owned by the United States--
Antonin Scalia: Board controlled by the United States. You acknowledge that the board votes the way it wants, once it's there.
David D. Cole: --The board, it's fiduciary obligation is to the shareholders. The 99-percent shareholder is the United States.
Antonin Scalia: That doesn't mean whatever the shareholder wants. You have a fiduciary obligation to someone, it doesn't mean that you have to jump the way that that person tells you.
David D. Cole: No, that's true, and I guess the question is somewhat... who is the United States? I think ordinarily, as a... ordinarily, the State action inquiry tries to assign responsibility between a private actor and the Government. Here, there is no private actor to which the Court could point. In the Court's previous decisions in which it has held that there is no State action, the Court has always pointed to a private entity which is responsible for the action alleged. In Blum, it was private doctors. In Rendell-Baker, it was a private school, in Jackson--
Anthony M. Kennedy: Well, Mr. Cole, may I interrupt you here? I thought the assumption of the argument... since you have not proceeded on the basis of the characterization theory, I thought the assumption of the argument was that for the sake of argument, we will assume that Amtrak is private, and the question is whether its connection with the undoubted Government, i.e., the President and the Secretary of Transportation and so on, is such as to justify concluding that the action that it takes is ultimately State action. And now you keep... now in your argument you're referring to Amtrak not as a private actor, but, in effect, as a governmental actor, and if we make that assumption, it's all over. We know what the answer is, because we know who made the choice in this case.
David D. Cole: --Your Honor, I don't think it's a question of assumptions. I think it's a... the Court has to look at the objective characteristics of the entity and determine whether it is constitutionally... whether the Government is constitutionally responsible for its actions. That is the question. And in order to do that, you have to look at all the facts and circumstances of Government ownership, control, et cetera.
Anthony M. Kennedy: I agree, but the... aren't you kind of sneaking a different kind of approach in, not necessarily intentionally, here, when you say, well, there isn't a private actor here as distinct from Burton-like cases, because once you do that you're saying, well, Amtrak really is not a private actor.
David D. Cole: For constitutional purposes, we are saying that it ought to be treated as the Government.
Anthony M. Kennedy: Is the... okay.
David D. Cole: For constitutional purposes.
Anthony M. Kennedy: So that you are... you are depending in part on the characterization argument here. This is not a Burton case.
David D. Cole: It is--
Anthony M. Kennedy: This is a case in which the person who take the action, i.e., the vice president here, is an agent of a governmental organization. That's your argument... governmental entity.
David D. Cole: --That is our first argument, Your Honor. Our second argument is that under Burton, the interrelationship between the Federal Government and this entity is such that it will... it is a joint participant with the entity, and therefore it is constitutionally responsible. Our third argument is that the Federal Government is responsible for the policy challenged here because the board, which is solely composed of Federal appointees, is responsible for the policy, and--
William H. Rehnquist: Well, Burton was a long time ago, Mr. Cole. It's been distinguished in many successive cases. I think there are probably closer and more recent decisions that state the Court's view as to what the relationship is on the State action.
David D. Cole: --Well, Burton was a long time ago, Your Honor, but Burton has been--
William H. Rehnquist: It's been distinguished in a number of succeeding cases.
David D. Cole: --But its... it has not been overruled, Your Honor, and the distinguishing features have always... the cases which have distinguished it are distinguishable from this case. That is, the courts that have distinguished it have essentially said, we don't find joint participation here, because the Federal... the Government cannot control this entity. The Government is not responsible for the conduct. The Government is not profiting from the challenged conduct. Here, the Government can control the entity, the Government controls the entity through its ownership and control. It's the only way that a corporation can be controlled, is through ownership and control. The United States owns 99 percent of the votes, and appoints the entire board. In addition--
William H. Rehnquist: Well, but then that makes it in many respects a case that is quite different from Burton, if you have that dominance of the Government in the case.
David D. Cole: --It's a much stronger case than Burton, and in fact Amtrak does not suggest that we have not clearly made a showing of joint participation under the Burton test. Rather, that they are--
Ruth Bader Ginsburg: Mr. Cole, is there any other case... I'm not aware of one... where you have an agency of this unique character? That is, for some purposes it's treated like a Government agency. For FOIA purposes, it's treated like a Government agency. For the Inspector Generals Act, it's treated like a Government agency. For APA purposes, it isn't. In Burton, you have a private actor, private restaurant owner in a State building. I don't know of any case that has a unit that is in some respects governmental, in some respects not. Is there any other such case?
David D. Cole: Well, there are numerous other entities, Federal entities which are for all intents and purposes indistinguishable from Amtrak, and which have been treated as State actors. For example, the United States Postal Service, the Tennessee Valley Authority, the FDIC, the Export-Import Bank, all of those are corporations which are owned and controlled by the Government which have been held to be and treated as... as State actors, but are exempt from numerous laws, statutory laws that otherwise apply to agencies. Procurement laws, civil service laws, those entities are exempt from those laws. So it is not treated as a governmental agency for all purposes... that is, for all statutory purposes... but because those entities are owned and controlled by the Government, they are treated as Federal actors.
Ruth Bader Ginsburg: Have there been any cases where such an agency, where its status as a Federal actor, State actor has been challenged successfully?
David D. Cole: --Has been... well, there have been many cases where constitutional claims have been adjudicated against such entities, yes. The question of Federal action has not arisen directly in this Court. For example, FDIC v. Mallen proceeds on the assumption that the FDIC could have violated Mr. Mallen's due process rights, so the Court has... in this Court--
Ruth Bader Ginsburg: But the FDIC was distinguished as an entity. It didn't have as many characteristics that arguably could qualify it as private, as Amtrak does.
David D. Cole: --Well, it is... I'm not sure about that. The FDIC is labeled as a mixed ownership Government corporation, just as Amtrak is. The FDIC receives no Federal funding whatsoever. Amtrak only survives by virtue of its massive annual subsidies from Congress. So I think, in fact, Amtrak is more of a governmental entity for constitutional purposes than the FDIC.
Anthony M. Kennedy: The nature of the challenged action in this case does not particularly help your State action argument, does it? That is to say, in a case like the preemptory challenge case, we said only Governments can have juries, only Governments can have preemptory challenges. Here, all businesses of a private nature control the speech that's contained, so the nature of the action taken here doesn't particularly help you, does it?
David D. Cole: The nature of the function performed by Amtrak?
Anthony M. Kennedy: The nature of the action that you challenge. That is to say--
David D. Cole: Well--
Anthony M. Kennedy: --regulating the billboard.
David D. Cole: --Well, we don't contend that it is a traditional Government function, no.
Anthony M. Kennedy: Does... do you think that when someone enters the station they think, I'm in a Government building?
David D. Cole: Enters Penn Station?
Anthony M. Kennedy: Yes.
David D. Cole: Absolutely, and the district court found, in fact, that when you walk through Penn Station, you can't know, because Penn Station is shared with other governmental entities... New Jersey Transit and the Long Island Railroad... you can't know whether you're in an area that is controlled by a governmental, clearly, undisputably governmental entity or Amtrak. In addition, Amtrak itself, I think many people would not know whether Amtrak is governmental or not. When you look at it, it certainly looks governmental. The United States owns all the shares. The United States appoints the whole board. This is, for all intents and purposes, a governmental entity.
Antonin Scalia: Mr. Cole, is it your position that the Government cannot acquire a private company without making that private company the Government? I mean, suppose... the Government, for instance, some years ago made a major loan to Chrysler Corporation. Now, suppose Chrysler had defaulted, and the Government had taken over ownership, private ownership of Chrysler Corporation. Would Chrysler Corporation have become the Government?
David D. Cole: Our position... yes. If Chrysler Corporation were nationalized, then it would be a Government--
Antonin Scalia: Not nationalized. The Government just gets the stock in a bankruptcy proceeding, just as a private individual could get the stock.
David D. Cole: --Our position is that when--
Antonin Scalia: You see, I mean, we normally maintain in the common law distinction between the corporation and the owner of the corporation, right?
David D. Cole: --Well--
Antonin Scalia: Why can't you do that, and why shouldn't you do that with respect to Government ownership just as you do with respect to private ownership?
David D. Cole: --Well, I think the question with a corporation is, with any corporation is, should you treat it as governmental, or should you treat it as private? If the corporation is controlled... is owned by 51 percent private shareholders, has a 51 percent private majority board, then it is... you can say that responsibility for its actions are in the private realm, unless there is something more which would establish State action. Where, on the other hand, the Government has a controlling interest both in ownership and in appointment of the board, there's no private entity to which you can point which is responsible for the actions alleged, and the Congress has recognized this. With respect to virtually every other corporation, it has acknowledged that those corporations which it owns in whole and whose boards it appoints are wholly-owned Government corporations, are treated as agencies, and would clearly be State actors. Those entities which Congress supports which are privately owned, privately run, like the Government-sponsored enterprises Fannie Mae, Freddie Mac, Sallie Mae, et cetera, those are treated as private entities and ought to be treated as private entities, because they are privately owned, they are privately run, the only governmental involvement there is the Government has a minority representation on the board, usually 3 of 15 members of the board. But where an entity is owned and controlled by the United States... and I think a perfect example is the Rural Telephone Bank. The Rural Telephone Bank is a mixed corporation. There's private ownership, and there is governmental ownership, and the way that Congress has set that entity up is that, as long as the United States owns 51 percent of the shares, its board is a majority Government appointees with some private representation and it is owned by the Government. As soon as 51 percent of the shares switch over to private ownership, then the governmental appointees from the board drop down to a very small number, and majority ownership... majority control of the board is lodged in a private majority board, and it is no longer an agency of the Government. So Congress itself has recognized that the question of ownership and control is central to how you treat an entity, and it has... and many Government corporations are privately owned, privately run, like the Government-sponsored--
John Paul Stevens: Is your test that whenever the Government has 51 percent control it becomes a Government actor?
David D. Cole: --Our test, Your Honor, is you have to look at all the facts and circumstances.
John Paul Stevens: Well, the 51 percent is not, in itself, enough, then.
David D. Cole: Well, we believe that in this case all the--
John Paul Stevens: I know what you believe in this case. I'm just asking you, are you adopting a test that 51 percent is enough in all cases?
David D. Cole: --Our position... yes. Our position would be--
John Paul Stevens: You are. The answer's yes.
David D. Cole: --Our position would be that if the United States owns a controlling... has a controlling ownership of the shares, or appoints a controlling majority of the board--
John Paul Stevens: Are there a lot of Federal Savings & Loan Associations around the country that are now Government actors?
David D. Cole: --That... no. The Federal Savings & Loan Associations would be privately... would be considered private actors under that test. The only entities that would be considered governmental actors under that test are those which are essentially wholly-owned Government corporations. Essentially, with Amtrak Congress--
John Paul Stevens: Well, essentially, 51 percent owned, is that what you're saying? I thought you said--
David D. Cole: --That's right.
Speaker: --51 percent.
David D. Cole: That's right, because--
John Paul Stevens: So you're saying, wholly owned.
David D. Cole: --That's right, because the State action inquiry is about responsibility, it's not about sole responsibility.
William H. Rehnquist: What about the converse of that proposition? If the ownership is less than 50 percent, does that mean it is... it is not a Government actor?
David D. Cole: That means that the ownership and control in and of themselves are not sufficient to make it a Government actor. Of course, if there is... in addition there are factors which support State action such as State compulsion of the particular conduct, then it might be a State actor. I'd like to reserve the rest of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Cole. Mr. Baine, we'll hear from you.
Kevin T. Baine: Mr. Chief Justice, and may it please the Court: The question in this case is whether it is fair to say that the Government was responsible for Amtrak's decision to reject the petitioner's political ad. Under a realistic view of the facts of this case, the answer to that question is no. The Court will not find the fingerprints of any Government official on that decision, nor will it find the shadow of any Government regulation on Amtrak's policy.
Anthony M. Kennedy: Well, I take it the board of directors of Amtrak would have had authority to set the policy for advertising if they'd thought it worth their time and attention.
Kevin T. Baine: Yes, that is correct.
Speaker: So--
Kevin T. Baine: There is no--
Anthony M. Kennedy: --So really, you can attribute to the directors of the corporation the acts of its subordinate officers, can't you?
Kevin T. Baine: --The board was responsible. In fact, the board did not know of the policy, but it did have responsibility.
Anthony M. Kennedy: Suppose it had? Suppose it had adopted the policy? Would the result then be any different?
Kevin T. Baine: It wouldn't make any difference. The mere fact that the president appoints--
Anthony M. Kennedy: Well, then, I'm not sure why we're talking about it, then. But-- [Laughter] Why wouldn't it have made a difference? Suppose the board of directors said, this will be our policy, and they had a policy which was highly restrictive of certain forms of speech?
Kevin T. Baine: --It would make no difference. The fact that the President appoints the board of directors does not make Amtrak a Government instrumentality. The Court has faced that question directly once and indirectly another time. In the Conrail case, the Regional Rail Reorganization Act cases, the Court dealt with Conrail.
Anthony M. Kennedy: Well, just before we get there, I just want to ask whether or not, isn't it fair for us assign this policy to the directors?
Kevin T. Baine: Yes.
Anthony M. Kennedy: Thank you.
Kevin T. Baine: And my point is that it doesn't make any difference, because in the Regional Rail Reorganization Act cases, the Court was confronted with the question whether or not the Government's appointment of Conrail's board of directors, and Conrail was an entity very much like Amtrak, formed for the same purpose and with the same structure, and the Court said that the fact that the President appointed board members did not make Conrail a Government entity. In FCC v. League of Women Voters, the Court faced the same question indirectly. It was dealing with the Corporation for Public Broadcasting, and every member of the board of directors of the Corporation for Public Broadcasting is appointed by the President, but the Court didn't think that that made the corporation part of the Government. In fact, quite to the contrary. The Court's opinion emphasized that the corporation was intended to provide insulation against Government interference in the affairs of the stations that received money from the corporation.
Ruth Bader Ginsburg: Mr. Baine, was there some legislative change regarding Amtrak after the date of the Conrail decision to which you referred?
Kevin T. Baine: There were a number of changes. There was a change pertaining to Amtrak after that case. However--
Ruth Bader Ginsburg: What was the change?
Kevin T. Baine: --Well, there were several changes. The board composition was changed slightly and the ownership was changed slightly. But Conrail--
Ruth Bader Ginsburg: In what respects were they changed?
Kevin T. Baine: --The United States required an ownership interest and appointed more board members, and Conrail, however, at the time the board in... the United States in fact was able to control the majority of the board. The petitioner has made the point that Conrail wasn't really functioning yet, and so we shouldn't pay too much attention--
Ruth Bader Ginsburg: In any case, it would be a stronger--
Kevin T. Baine: --to the Conrail case.
Ruth Bader Ginsburg: --stronger case after the Conrail decision than before, because of those legislative changes. They tended in favor of the finding of governmental color to this entity, not against it.
Kevin T. Baine: Well, but they didn't change the issue that the Court addressed in the Conrail case, which was whether or not appointment of board members by the President made an entity a part of the Government. The most important fact, I think, to bear in mind here is that--
Sandra Day O'Connor: Mr. Baine, do you take the position that the plaintiff waived the argument below about the direct question, is Amtrak a Government agency?
Kevin T. Baine: --We most certainly do, and this is not a case as in Yee, in which a party simply failed to raise a question, or failed to raise an argument. The argument and the question was specifically raised and explicitly waived and conceded.
Sandra Day O'Connor: So what do we do with it here? We address the Government function inquiry, the close nexus inquiry--
Kevin T. Baine: I think the Court--
Speaker: --or something of that sort?
Kevin T. Baine: --I think the Court should address the case on the basis upon which it was presented to the court of appeals. It would come as a surprise, I would think, to the court of appeals to learn that its judgment was going to be reversed on the basis of an argument that was explicitly conceded--
Speaker: May I--
Kevin T. Baine: --and so we say the question--
Sandra Day O'Connor: --All right. May I ask, in making that analysis, whether it is the same analysis we would make if it were a question of, for instance, State sovereignty, asking whether it's an arm of the State for State sovereignty purposes. Is it the same analysis?
Kevin T. Baine: --I don't think it's precisely the same. I think this Court has on a number of occasions faced the argument that the petitioner is making that, by virtue of a close relationship between the Government and an entity that is nominally not the Government, there is State action. What the Court has said is that when that argument is made, the proper inquiry is whether the relationship between the Government and the otherwise private entity affected the decision or the policy that's under review. The fact that the Government might appoint board members here, or that there might be some other connections, at the very most would suggest that it's conceivable that the Government might have asserted some influence--
Speaker: Mr. Baine--
Kevin T. Baine: --but that only frames the question.
William H. Rehnquist: --Mr. Baine, the second question presented in the petition for certiorari is whether the court of appeals erred in holding that Amtrak's asserted policy was not State action. Are you saying that a petitioner in this Court has to just stick with exactly the same arguments on which he lost in the court of appeals?
Kevin T. Baine: I wouldn't go quite that far, but I would say that it would be inappropriate to permit the petitioner to raise an argument that he explicitly conceded, and that the district court and the court of appeals... where the district court and the court of appeals relied upon that concession. The petitioner said, we do not argue that Amtrak is a Government entity, but we accept that it is, generally speaking, a private entity.
William H. Rehnquist: Mr. Baine-- --Well, did a factual determination, or a factual inquiry, turn on that statement? I mean, were factual findings avoided? It seems to me it was just an argument not made that perhaps could have been made, and I don't see why, since it's the same claim, basically, the petitioner can't now make it here.
Kevin T. Baine: If the argument had not been explicitly waived, the evidence might well have been different, but I'm perfectly happy to address the merits of the argument. I think the merits--
John Paul Stevens: May I also ask, along with the Chief Justice's question, did you claim any waiver in your brief in opposition to the cert petition?
Kevin T. Baine: --No, because the petition for certiorari does not make the explicit argument that's made for the first time in the brief on the merits.
John Paul Stevens: No, but it--
Kevin T. Baine: That--
John Paul Stevens: --clearly was embraced within the question the Chief Justice quoted, wasn't it?
Kevin T. Baine: --Well, there are two questions here. One is whether it's fairly embraced if you read the question very generously to the petitioner, and that might be so, but our point is different. Our point is, if you're going to read it that generously, you're going to read it to include an argument that was explicitly withdrawn from the case in the court of appeals, but I'm prepared to address the question in case the Court does entertain it.
Ruth Bader Ginsburg: Mr. Baine, it's easy to concede this is not a Government agency for the Federal Tort Claims Act purposes, it is not a Government agency for purposes of APA purposes, but where is there a concession that this is not a Government actor for purposes of constitutional limitations?
Kevin T. Baine: Well, I would simply direct the Court's attention to the petitioner's brief in the district court and the court of appeals, in which they said they do not contend that Amtrak is a Government entity, but, rather, a private entity so interrelated to Federal entities that it's to be treated as a State actor here. Now, if the question is presented whether or not this is a Federal agency or instrumentality for all purposes, our answer to that question is no for three reasons. First, because Congress very unambiguously said the entity they were creating was not to be considered part of the Government. Second, because this Court said in the pass rider case, Atchison, Topeka, and Santa Fe case, that Amtrak is not a governmental entity, but rather a private corporation. And third, because there were valid and legitimate reasons why Congress said that Amtrak should not be a part of the Government and, indeed, today Amtrak has important features that are not at al like a Government agency, and that are very much like a business.
Ruth Bader Ginsburg: Would you-- --Mr. Baine-- --Would you agree with the characterization I suggested before that this is a centaur-like entity, that it is part private, part Government?
Kevin T. Baine: One could call it quasi-public in the sense that that word is sometimes used to refer to corporate entities. There are aspects of Amtrak that one could say are public in the sense the public rides the trains, and it's certainly true that the Government regulates Amtrak and has the other relationships that we've been talking about. But our position is that if you have an entity that arguably has some features that may be governmental and some that are private, the appropriate question is, what about the action or the policy that we're talking about here, is that influenced by the fact that the Government's involved, and the answer to that is clearly no. The policy against political advertising--
John Paul Stevens: Mr. Baine, can I test your hypothesis with a rather unlikely hypothetical question?
Kevin T. Baine: --Certainly.
John Paul Stevens: Assume that the board, viewing itself as totally private, like... it adopted a policy of accepting advertisements only from Presbyterians and Democrats, say, an extreme example, and would refuse all other advertising. Congress disapproves of this policy, and passes a law and says, you do not have the freedom to make that kind of decision. You must act neutrally in all cases. Would that statute be constitutional? I think not, if it's a totally private entity.
Kevin T. Baine: We would begin the analysis with the question whether or not Amtrak has any First Amendment rights, and we would say that it does, and then we would ask whether or not there was a compelling State interest that justified the legislation that said Amtrak couldn't discriminate in that sense. In that case, it could come out either way. It really wouldn't affect this question. But we would contend that Amtrak does have First Amendment rights in the same way that its competitors have.
John Paul Stevens: Well, if it has the same rights as its competitor, private competitors have, it could engage in a policy of selective advertising that could not be overruled by statute.
Kevin T. Baine: That may be, but it is a far-fetched hypothetical, and in fact the policy in this case is that Amtrak wanted very much to stay away from all matters of controversy, to avoid any suggestion that they're favoring one side or the other in political debate, and have no political advertising whatsoever, and we think that's a policy choice they ought to be able to make.
Anthony M. Kennedy: Well, but that goes to the merits. What Justice Stevens presents is the specter of a corporation that is beyond Congress' control, a corporation that on the one hand Congress funds, subsidizes, and controls the appointment of 100 percent of its directors, but on the other hand it cannot be controlled by the Congress. That is very odd.
Kevin T. Baine: Well, under Rust v. Sullivan, I think Congress would have the power to control the expenditure of public funds, and if the concern here is that Amtrak receives Government funds and might misuse Government funds in a way that the Congress thought was inappropriate, I think Congress would have greater ability to restrict Amtrak's use of those funds than it would have an ability to restrict the use of American Airlines funds--
John Paul Stevens: No, but my hypothetical--
Kevin T. Baine: --which are not coming all from the Government.
John Paul Stevens: --didn't involve the use of Government funds. It involved a revenue-generating policy, generating revenues only from selective advertisers.
Kevin T. Baine: Then it might be immune. But--
Antonin Scalia: Couldn't you say that anybody who receives Government funds shall not engage in the following practices? I thought we do that all the time. I thought--
Kevin T. Baine: --There's no question that if the activity involves the expenditure of Government funds I think it's clear that the answer is the Government can regulate. If the question doesn't involve the expenditure of Government funds at all, I think it would be a question that would be hotly debated.
Antonin Scalia: --The activity in question, as opposed to the institution? Even if the Government subsidizes Amtrak, it can't say any institution that gets a Government subsidy shall not engage in these forms of discrimination? Surely you can say that. It has to be a particular activity?
Kevin T. Baine: It wouldn't be of any great concern to Amtrak if the case came out that way, and no doubt the petitioner would be arguing that's exactly the way it should come out. I said before that--
Ruth Bader Ginsburg: Let's take a case without any regulation. Suppose Amtrak says, we don't want any leafleting in Penn Station, and that's challenged as in violation of the First Amendment, and this Court's decision involving the Port Authority Terminal is cited by the plaintiffs as precedent, could Amtrak have a policy that says, no leafleting on these premises?
Kevin T. Baine: --Amtrak could have such a policy. The important point to bear in mind, I think, is that Amtrak is continuing in the same business of the railroads that it succeeded, and it is important and it's desirable, it seems to me, that Congress have the flexibility to approach crises in the business world, to essentially reorganize and restructure and industry, as it did in this case, without necessarily saddling the enterprise that results with all of the obligations of Government. Amtrak's competitors in the airlines and the bus companies are not required to observe all of the requirements of the Constitution, and it is important that Amtrak be able to compete on an even playing field. If we look at Amtrak's function, we see that its function is commercial, not governmental. It doesn't govern in any sense of the word. It doesn't make policy, it doesn't regulate business, it is a business. If we look at its structure--
Anthony M. Kennedy: That sounds like it describes the Bank of the United States, which was given governmental... intergovernmental immunity in McCullough v. Maryland.
Kevin T. Baine: --Well, the function of the... the function of the entity is significant. It is not the only factor, but it is significant, and--
Anthony M. Kennedy: Do you think McCullough v. Maryland was correctly decided?
Kevin T. Baine: --I think I have to say yes. [Laughter] I don't want to bite off too much. We'll accept McCullough v. Maryland. But there are many things about Amtrak that are not at all governmental. Its structure is a structure of a private corporation, and it makes a difference. There are private shareholders who contribute private capital to the formation of this company. It is managed by a board of directors who are, for the most part, except for two people, private citizens, not public officials. They don't take an oath to support and defend the Constitution. They assume a fiduciary duty to try to operate this business as a business, and to try to make money. The management and control of this corporation is in the hands of its board, not the United States Government. There is not a shred of evidence in the record that the Government, the President, the Secretary of Transportation, has ever attempted to interfere in the day-to-day operations of Amtrak, and there's certainly no evidence that the Government--
David H. Souter: Well, does it have to be day-to-day operation? I mean, does the management have to be that precise in order to qualify?
Kevin T. Baine: --There's no evidence that the Government interfered in the operation at all, except insofar as--
David H. Souter: Well, I presume the governmental officers take into consideration the policy choices which the directors make or support when they decide whether or not to reappoint directors, or that they anticipate those policies when they appoint them in the first place. That's not enough?
Kevin T. Baine: --Well, one of the things that might have been different if the petitioner made the argument--
David H. Souter: But that's not enough, I take it?
Kevin T. Baine: --No, I don't think that's enough.
David H. Souter: So it's basically got to be day-to-day management before the nexus is close enough?
Kevin T. Baine: Well, I think in fact there ought to be some evidence that the Government cared about Amtrak's advertising policy, and if there are some things about Amtrak that may arguably be governmental, and some that are commercial, this surely falls on the commercial side of the line.
David H. Souter: Well, you say the Government cared. I mean, if the President of the United States said, I think it's appalling that there are political advertisements in Amtrak stations, would that be enough?
Kevin T. Baine: That probably would be enough, but it depends on how you read--
David H. Souter: What if the director said, too bad, we like it?
Kevin T. Baine: --That would show the independence. But the point is that-- [Laughter]
David H. Souter: No, but I mean, the criterion can't be whether the Government cares or not. The criterion has got to be some criterion of control, hasn't it?
Kevin T. Baine: I think there are two ways to look at it.
David H. Souter: Doesn't it have to be a criterion of control?
Kevin T. Baine: I would say yes, and--
David H. Souter: And the only question is, how precise must the control be? Must they be micromanagers or macromanagers, isn't--
Kevin T. Baine: --Well, when the Court has faced the question in the past that because of a relationship between the Government and another entity there is State action, the Court has asked the question whether or not the Government exercises any control, overt or covert, over the particular decision that is at issue in the case, and that surely did not happen here. The petitioner is taking the position that, even though the Government had nothing whatsoever to do with this particular policy... indeed, it's not even a case in which the Government acquiesced in a policy, because there's no evidence that it even knew about it, but the petitioner takes the position that even though that is the case, the Government's domination of Amtrak is so complete that we must assume that everything it does is governmental.
Antonin Scalia: --Are you willing to accept de facto control as the criterion? I mean, I can imagine a lot of entities, including, for example, the Corporation for Public Broadcasting, the National Endowment for the Arts, many private institutions that are so dependent upon Federal subsidies, for example, that if it becomes pretty clear that the Federal Government wants something to be done, they will do it, lest they lose their subsidies. Is that enough to make that--
Kevin T. Baine: No, it isn't. The only thing we accept--
Antonin Scalia: --But that's control.
Kevin T. Baine: --The only thing--
Antonin Scalia: That's de facto control, isn't it?
Kevin T. Baine: --The only thing we accept is that if the Government, in fact, exercised control over the particular decision, then there would be State action.
Antonin Scalia: So it isn't just the ability to control that you're arguing, it is the exercise of the control.
Kevin T. Baine: That is correct. The ability to control frames the question, and the question is, was the ability exercised?
John Paul Stevens: Well, but Mr. Baine, what do you do with cases like Monroe v. Pape, where the City of Chicago certainly didn't approve or know about what the police officers were doing, but nevertheless was treated as State action?
Kevin T. Baine: Well, the police officers--
John Paul Stevens: You put people in a position where they can act as though they were the Government, and here I guess, Amtrak has quite a bit of authority to act in an important way.
Kevin T. Baine: --But we regard Government officials as the Government, and we always have, and the question here is whether or not--
John Paul Stevens: Even though they're acting ultra vires. Even though they're acting beyond their--
Kevin T. Baine: --That's the way we've always viewed it, and I don't think that that affects this case in any way.
William H. Rehnquist: --Well, does it make... do you think it makes a difference in this case that Amtrak inherited this policy from Penn Central and did nothing about it, as opposed to having initiated it itself?
Kevin T. Baine: I think it underscores the degree to which this is not a governmental action or policy at all. The case would come out the same way if Amtrak formulated the policy, but the fact that it was formulated by the Pennsylvania Railroad underscores that it's the kind of decision that is a business decision. It's not governmental at all.
David H. Souter: I'm just puzzled by the concept that an action is governmental or nongovernmental based on the indifference of its directors. I just don't understand the legal--
Kevin T. Baine: No, I'm not... if I--
Speaker: --the legal reasoning--
Kevin T. Baine: --If I suggested that, I didn't mean to suggest that. What I mean is, by its very nature, it is not governmental. That's the point that I was trying to make. The board, no question, has the ability to control that policy, but it is very important, I think, to underscore the point that the Court has never suggested that the mere fact that the Government may have the power to appoint board members makes the entity a governmental entity, and I think that would be a very incorrect statement to make. There's no evidence in the record that anybody on the board has ever buckled under to the pressure of a President. Judges are appointed by presidents, and some judges are appointed by something other than life terms, for fixed terms. It would be unreasonable to assume that these board members would violate their fiduciary duty and take an action that's not take for the business interests of the corporation, but, rather, to promote some political or governmental objective. If that is the theory of the case--
Ruth Bader Ginsburg: --Don't you see some difference between the Secretary of the Department of Transportation as the Government's person on this board and a judge appointed under Article III, in terms of affiliation with the Government?
Kevin T. Baine: --The Secretary has a continuing relationship to the President in a way that judges do not, and that is true, but the point is that--
Ruth Bader Ginsburg: The President is the master of the Secretary.
Kevin T. Baine: --Of one member of the board, and not--
Speaker: Well, but he's also taken--
Kevin T. Baine: --of any of the others.
David H. Souter: --He's also taken an oath under the Constitution, and I find it rather odd to say that we could say, oh, this is a business decision, and we are not going to allow our governmental character to influence the policies that we make. I think that's... I thought that's exactly why they sit on the board.
Kevin T. Baine: One Government official, one Federal Government official sits on the board. The board is composed primarily of private citizens who are appointed by the President, but who are, in fact, initially selected by other bodies.
David H. Souter: Do you think in that capacity that official, the Secretary, is free to make any judgment he wishes with reference to matters of speech?
Kevin T. Baine: I think he's entitled to vote the way he feels his fiduciary duty compels him to vote, and I don't think the mere fact that one of the board members also serves as Secretary of Transportation makes the board's decision a Government decision.
David H. Souter: Are constitutional policies any part of that consideration?
Kevin T. Baine: Well, I think they're certainly part of the consideration, but when one out of nine members of a board has taken an oblig... an oath to uphold the Constitution, that doesn't affect the way the other eight think, nor is it fair to assume that--
Antonin Scalia: I thought your position was he's entirely upholding the Constitution when he allows a private entity to behave like a private entity.
Kevin T. Baine: --Well, we'd certainly take that position, too.
Antonin Scalia: You wouldn't say the Secretary is violating his oath of office when he allows a private entity which he's been placed in charge of to act like a private entity.
Kevin T. Baine: No, I don't think that he would. I think that he obviously has in the back of his mind some sense of his other job, I suppose, but when he sits on that board, he has to function like a board member, and he has to ask himself, how are we going to run this board like a business, and he certainly does not violate his oath when he in fact carries out his obligation as a board member. The Court has considered the question whether or not Amtrak is a governmental actor for purposes of a due process challenge in the pass rider case. The question in that case was whether certain agreements entered into by Amtrak were governmental agreements, such that when Congress came along later and impaired the obligations of those contracts, it impaired the obligations of the United States, and the Court said, no, that's not the case, Amtrak is not part of the United States, those contracts are not obligations of the United States, they are obligations of a private entity. The label that Congress placed on Amtrak was not a mere label. It has meaning, and it has consequences. In fact, it's an instruction to Amtrak that it is not to regard itself as part of the Government, and it's also an instruction to the Government that it's not to think that it can exercise control over Amtrak's affairs. It's a statement that Amtrak doesn't speak for the Government, and the Government is not generally bound by what Amtrak says. At the very least, this statement by Congress means that Amtrak and the Government are separate entities and, as a general matter, the Government is not responsible for what Amtrak does.
Ruth Bader Ginsburg: Do you... can you give an example of another private entity that is subject to the FOIA and to the Inspector Generals Act?
Kevin T. Baine: I don't know that I can give a list of entities that are subject, but the fact that this corporation--
Ruth Bader Ginsburg: FOIA doesn't apply to the private sector, does it?
Kevin T. Baine: --In general, it doesn't, and I think it does show that Congress was not simply acting blindly. Congress recognized that there are some things about Amtrak that suggest that it ought to ask whether or not certain statutory policies apply, and in the case of FOIA, it decided it would be a good idea if the public could examine Amtrak's affairs and be able to learn about how to conduct itself.
Ruth Bader Ginsburg: To recognize that in some respects this was a public and not a private corporation.
Kevin T. Baine: In some--
Ruth Bader Ginsburg: At least for that respect--
Kevin T. Baine: --That's right.
Ruth Bader Ginsburg: --for purposes of the Freedom of Information Act.
Kevin T. Baine: Yes.
Ruth Bader Ginsburg: And for purposes... and also under the Inspector Generals Act, do you know any private entity that is subject to that legislation?
Kevin T. Baine: No, but in the Inspector General Act, the Congress said, we're doing this, but we recognize that Amtrak is not part of the Government. What the statement by Congress that has been accepted by this Court means is that as a general matter, the Government is not responsible. There may be some instances where the Government is responsible for what Amtrak does, but we would suggest that those instances are instances in which the Government has, either by law, or by regulation, or by exercise of coercion or influence, had some impact on Amtrak's decision, and that is not the case here. This is a case of Government inaction. Insofar as this policy was concerned, the Government was completely inactive and uninterested, and that is why the argument, until the briefs in this Court, has been that there's Government action under the theory of Burton, which was a case in which, under very unusual circumstances, this Court did hold that the Government's inaction amounted to action. Burton has never been applied beyond the limited factual setting in which it occurred, and the last place to apply it would be in a case involving the First Amendment, where the constitutional command essentially is to be inactive, and to leave the decisions regarding speech to private entities. The position that we think is supported by the cases is that in a case like this, when there is evidence that the Government has, in fact, influenced or affected the decision that took place, it is fair to say that the Government is responsible. But when the Government has not had any influence whatsoever over the particular action, in those cases when Amtrak has made a decision for purely business reasons, it ought to have the same freedom to act that its competitors enjoy. Thank you very much.
William H. Rehnquist: Thank you, Mr. Baine. Mr. Cole, you have 3 minutes remaining.
David D. Cole: Thank you, Mr. Chief Justice. Going back to Mr. Chief Justice Rehnquist's question regarding the private initiation of this policy, the case that is closest to this case is the Gerard College case, in which a privately founded, privately funded, privately funded institution was run by a board of Government appointees, and this Court found that the private founders' policy of limiting admission to white males was State action because the board was responsible for that policy. The board didn't adopt that policy, but the board was responsible. The Pennsylvania supreme court found that the board was not a governmental entity, because the city had specifically disavowed any relationship to the board through its city charter. The Supreme Court did not find that compelling, and that, I think, underscores that the case is not to be decided by label--
Anthony M. Kennedy: Perhaps you can remind me, were the trustees of Gerard College ex officio members, or were they simply private people that were appointed by the city?
David D. Cole: --They were... it was a... they were appointed by the Government. They were not... it was only... it was a board of trustees of the City of Philadelphia, but the City of Philadelphia had said that this board... although we appoint the trustees, this board does not constitute a city entity. This Court said, we don't decide by labels. In West v. Atkins, the doctor, who was held to be a State actor, was not a Government employee. In Cherry Cotton Mills, the Reconstruction Finance Corporation, the question was, should it be treated as the United States for counterclaim purposes? Congress had labeled it a corporation. This Court said that the fact that Congress called it a corporation does not make it something other than what it actually is, an agency selected by the Government to serve governmental purposes. Government today is increasingly doing business through the corporate forum, bringing business principals into Government.
Antonin Scalia: The Corporation for Public Broadcasting, do you think that's governmental, too?
David D. Cole: I think the Corporation for Public Broadcasting is a difficult question. It's board is wholly--
Speaker: I know that. What do you think the answer is?
David D. Cole: --Well, its board is wholly appointed by the United States. However, there are fairly stringent statutory guarantees of independence, and I think the question would be whether those statutory guarantees of independence, which provide that the board members cannot be chosen on a political basis, and that no political person can affect the running of that corporation in any way--
Antonin Scalia: What difference does that make? I mean, you have--
David D. Cole: --Well, the question... because the question, Your Honor, is whether there is an independence, a sufficient independence to this entity that it should not be treated as--
Antonin Scalia: --The board members are appointed by Government officials.
David D. Cole: --Right, and we think--
Antonin Scalia: There and here.
David D. Cole: --That's right, and we believe that, ordinarily, where the Government appoints the board, it ought to be treated as a State actor. As this Court has held, all State action cases depend on the facts and circumstances of the case, and because of the statutory designation with respect to the Corporation for Public Broadcasting, might be a different question. That's not a question posed here.
William H. Rehnquist: Thank you, Mr. Cole.
David D. Cole: Thank you.
William H. Rehnquist: The case is submitted.