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updated 3/22/2010 11:37:04 AM ET 2010-03-22T15:37:04

Guest Host: Michael Smerconish

Guests: Rep. Steny Hoyer, Rep. Adam Smith, Peter Beinart, Al Snyder, Jeanne

Cummings, Chris Cillizza

MICHAEL SMERCONISH, GUEST HOST:  Race to the finish on health care reform.

Let‘s play some HARDBALL.

Good evening.  I‘m Michael Smerconish, in tonight for Chris Matthews, whose son, Michael, is getting married this weekend.  Congratulations.

Leading off tonight: Countdown to Sunday.  The big health care reform vote is now expected to happen in just two days, and Democrats may—may - - be inching closer to winning passage of the bill.  Five more Democrats announced today that they‘ll vote in favor of reform, but the vote could still go either way.  We‘ll talk to the Democratic leader in the House and to a Democrat still sitting on the fence.

Plus: One observer says whatever happens on Sunday, the Democratic Party has been changed forever.  We‘ll talk to Peter Beinart about why he says the party will never be the same.

Also, more on that church group that protests at the funerals of fallen soldiers.  They say American war deaths are God‘s punishment for America‘s tolerance of homosexuality.  The father of one fallen Marine is suing the group.  His case is going to be heard by the United States Supreme Court.  He‘s with us tonight.

And why some on the right are saying Sunday‘s health care vote is an affront to God.  That story where it belongs, in the “Sideshow.”

Finally, I‘ll finish tonight with my own commentary on government efforts to wage a war on obesity.

We start with the vote on health care.  Congressman Steny Hoyer of Maryland is the majority leader.  Thank you for being here, Congressman.

REP. STENY HOYER (D-MD), MAJORITY LEADER:  Good to be with you, Mike. 

Thank you.

SMERCONISH:  Let‘s watch together.  Here‘s the president today at George Mason University in Virginia.  We‘ll listen.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  ... one year after the worst recession since the Great Depression, having to make a bunch of tough decisions, having had a tumultuous debate, having had a lot of folks who were skeptical that we could get anything done.  And right now, we‘re at the point where we are going to do something historic this weekend!  That‘s what this health care vote is all about!

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

SMERCONISH:  So Congressman, let me ask you the $64,000 question.  Do you have the votes?

HOYER:  I think we‘re going to have the votes on Sunday when the roll is called, and we‘re going to pass this bill, yes.

SMERCONISH:  Can I ask you a question about process?  By day, I‘m a talk radio host, and it will not surprise you that I hear a lot of concern about “deeming,” the self-executing rule, Slaughter.  And to many, it sounds nefarious.  Why the need to go this route?

HOYER:  Well, first of all, it‘s not nefarious at all.  The Republicans used it about 200 times when they were in charge over 12 years.  But let me tell you what this really is, and every American understands this.  Let‘s say you‘re going to buy a house and the roof is leaking and needs to be fixed.  And so you sign the contract to buy the house, but you say, It‘s contingent upon you‘re fixing the roof, and I won‘t settle until you fix the roof.

That‘s essentially the process that has been suggested, not finally decided on but suggested that, in effect, you vote to buy the house.  That is the Senate bill.  You vote for the Senate bill.  But that‘s contingent upon the roof being fixed.  That is the reconciliation bill being passed.

So that it‘s not—there‘s nothing nefarious about it at all.  I‘m surprised that so many people have perceived it as nefarious.  There‘s going to be a vote on a Senate bill as amended, in effect, which would have happened if we‘d had a conference.  Unfortunately, the Republicans in the Senate wouldn‘t vote to go to conference.  As a result, the normal process, which would be putting the Senate and House bills together—that is to say, reconcile the differences between the two, adopt amendments and bring that out, and you‘d have one vote on that.  Now we‘re essentially going to have two votes under the proposal, which is still under discussion.  But there‘s nothing nefarious about it.

It‘s straightforward.  Americans are going to know how their member voted on health care reform.  We believe that Americans are going to be for and are for reform.  There have been some differences, obviously, clear differences on specifics.  But the American public, when polled on the specifics that are in this bill, overwhelmingly endorse them.  And recent polling shows that the majority of them—in recent polls, in “The Wall Street Journal” poll and “The Economist” poll—think this bill ought to be passed.  And we think it will be.

SMERCONISH:  My desire, Congressman, is that regardless of how one feels about this particular bill, that at least all Americans will clearly understand how their member of Congress voted, so that when the town hall meetings begin, when members come home and start to meet with their constituencies—my standard, sir, is that you ought to be able to say to your member of Congress, Were you for it or against it?  And they should be able to answer it with a one-word reply.

HOYER:  Absolutely.  I agree with that, and I think they will be able to.  Clearly, in order to pass what would otherwise be the conference report, but in this case, the Senate report as amended, they‘ll say yes or no to that question.  And I think we‘ll have more yesses than nos, and therefore, it‘ll pass.

But I agree with you, the American public have a right to know how their member voted.  Every member ought to understand that they‘re either voting for health care reform or they‘re not.  And they ought to be able to respond cleanly on that issue, you‘re right.

SMERCONISH:  On tomorrow morning, the president comes to Capitol Hill for one last effort to rally the troops?

HOYER:  Yes, the president wanted to meet with us.  We want to see him.  We want to talk about where we are and what his views are.  Obviously, he made this a very principal objective in his campaign.  He told all Americans that this was the policy he was going to pursue if he was elected.  He was handily elected president of the United States.  Many of us in the Democratic Party told our constituents the same thing.

And in fact, of course, John McCain, the Republican candidate for president, in an October debate with President Obama, said he, as well, believed that we ought to have an affordable, accessible health care process for all Americans.  Now, he may differ with the means, but he clearly articulated the same goal.  And that‘s the goal we‘re trying to attain and we think we will.

SMERCONISH:  Something else, Congressman, that I hear from folks who call my radio programs.  They want to know if whatever—assuming it gets passed on Sunday in the House of Representatives, does it apply to you?

HOYER:  Yes.

SMERCONISH:  Yes is the short answer?

HOYER:  You want a yes or no answer, the answer is yes.

SMERCONISH:  So what you‘re saying is that members of Congress will be governed by that which is created through the exchanges in the same way that folks without insurance or those who do have insurance?

HOYER:  Yes.

SMERCONISH:  I want to show you one more piece of sound, if I may, from the president‘s speech today in his last-bid effort to rally the troops.

(BEGIN VIDEO CLIP)

OBAMA:  Teddy Roosevelt, Republican, was the first to advocate that everybody get health care in this country.

(CHEERS AND APPLAUSE)

OBAMA:  Every decade since, we‘ve had presidents, Republicans and Democrats, from Harry Truman to Richard Nixon to JFK to Lyndon Johnson to - - every single president has said, We need to fix this system.  It‘s a debate that‘s not only about the cost of health care, not just about what we‘re doing about folks who aren‘t getting a fair shake from their insurance companies, it‘s a debate about the character of our country.

(END VIDEO CLIP)

SMERCONISH:  Congressman, the president seems to have his game face on.  In retrospect, was he disengaged until too late in the process?

HOYER:  No, I don‘t think he‘s been disengaged.  And very frankly, Mike, this has been the most open, transparent, involved process in adopting a piece of legislation that I‘ve seen, frankly, in my 40 years in legislative office, 30 years in the Congress, more hearings, more debates, more amendments, more discussion, more notice of legislation.  This bill that we‘re going to consider on Sunday has been on line for three months.

So that I think the president‘s been engaged.  He‘s been working with us.  I think he‘s now going to the public and saying, Look, this is what I said America needed.  This is what I said I would do.  And this is what you elected me to do.  And so I think he‘s got his game face on now, but I think he‘s had his game face on.

As you know, very early in his term, he convened a health care forum in the White House, in the winter, to discuss this matter with all of the interest groups and stakeholders involved.  And then he held an extraordinary session, as you know, just weeks ago.  I don‘t think it‘s ever happened before, where a president of the United States has spent seven-and-a-half hours discussing in a very civil, thoughtful, informed way, health care reform in our country...

SMERCONISH:  Hard to believe it‘s coming to a close.  We‘ve been at it for a long, long time.  Hey, thank you, Congressman Steny Hoyer.  Appreciate your time.

HOYER:  You bet.  Thank you.

SMERCONISH:  Thank you, sir.

Let‘s turn now to Democratic congressman Adam Smith of Washington state, who says he‘s leaning yes for Sunday‘s vote, but he‘s not yet certain.  I think he wants to make some news on HARDBALL.  At least I hope so.  Congressman, what‘s your position?

REP. ADAM SMITH (D), WASHINGTON:  I‘m definitely leaning more closely in favor.  I am looking at the reconciliation language that came out.  Looks pretty good.  I‘m leaning in that direction.  I got to have a couple more conversations on some substance, a couple of minor issues.

But I agree very strongly with what Mr. Hoyer said.  First of all, we‘re going to have a vote on this.  Everyone‘s going to know whether or not you voted for health care reform or not.  We have a health care system that‘s been in need of reform for years and years.  And part of the reason that it hasn‘t been reformed is because it‘s a very hard, very controversial issue.  It should not be surprising that it‘s controversial.  But to a certain degree, that‘s all the more rebound to have the courage and the leadership to step up and try to get us a better system.  And that‘s where I want to be, and I‘m reasonably confident I will get there.

SMERCONISH:  So of what significance was the president‘s personal lobbying in your case?  I understand you had a meeting with the president within the span of the last couple of days.

SMITH:  No, it was a couple of weeks ago.  You may have me mixed up with someone.  I went in with part of a larger group.  Really, not much at all.  What really got me was the substance of the issue.  I‘ve been speaking with the health care policy experts at the White House, people like Zeke Emanuel, to get an idea of the substance and to go back and forth on some of the issues that have been raised.

Look, we‘ve got to cover more people and we‘ve got to get costs under control.  And the second one is the one that I‘ve really emphasized from the beginning of this debate.  It‘s why I was so reluctant to vote for the House bill.  I didn‘t think it did enough.  I think the Senate bill does more.  And the CEO—the...

SMERCONISH:  The CBO numbers?

SMITH:  ... CBO numbers that came out sort of show that.  Now, I will say and some people have said, yes, but you know, future Congresses have to keep the cost curve going down, as well.  I completely agree.  But if we don‘t start, it‘ll never happen.  We have to do it.  Future Congresses have to do it.  There‘s a lot of tough decisions going forward to make health care work.  But we‘ve got to start.  If this goes away, we‘re nowhere.

And I think one of the most telling facts, the only bill the Republicans have ever put out on health care reform was last year.  And one of the facts of it was it actually increased the number of uninsured.  Getting more people covered is tough.  This bill takes a stab at it, and I think we need to get headed down that road.

SMERCONISH:  What extent are you hearing from constituents, the way in which I, as a talk radio host, am hearing from people who have process concerns, that the look and feel of the way in which the vote will go down Sunday is troublesome?

SMITH:  You know, I‘m hearing almost exclusively about substance, frankly.  People are concerned about a lot of different pieces of it.  We are hearing a little bit about process.  I don‘t think that has any place in this debate.  I think the Republicans and those who oppose this bill are trying to basically raise a red herring.

We‘re going to vote on this bill.  Good luck to any member of Congress after this vote on Sunday who tries to go back and say, OH, I didn‘t really vote on the bill.  The bill became law.  You voted on it.  And I think Majority Leader Hoyer described it perfectly.  We‘re going to vote on the Senate bill and say we want these changes to it.  We‘re going to vote on the Senate bill, no doubt about it, and we‘re going to have to, you know, stand or fall on our support or opposition to that bill.

SMERCONISH:  What do you think becomes of the Stupak concerns that exist relative to health care?

SMITH:  I don‘t know.  And that‘s always been a weird issue for me.  I agree we should not be changing the Hyde rule in this legislation.  I‘ve seen Congressman Stupak‘s language in the House bill.  I‘ve seen the language in the Senate bill.  And frankly, it‘s kind of a Rorschach test for me to figure out the difference.  They both seem to state very clearly the Hyde amendment will not be changed by this legislation.  There will be no federal funding of abortion services.

But you know, Bart Stupak has been more involved in that than I am, and they will try to work out the language.  But both bills seem to get you to the same place.

SMERCONISH:  And Congressman Adam Smith, thank you very much for being on the program.  We appreciate it.

SMITH:  Thanks for the chance.

SMERCONISH:  And coming up: Assuming health care passes, which wing of the Democratic Party wins?  And what does it say about President Obama?

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

SMERCONISH:  Welcome back to HARDBALL.  With less than 48 hours to go before the House votes, President Obama, to borrow a phrase he likes to use himself, is fired up and ready to go.  Let‘s watch.

(BEGIN VIDEO CLIP)

OBAMA:  I don‘t know how passing health care will play politically, but I know it‘s right.

(CHEERS AND APPLAUSE)

OBAMA:  Teddy Roosevelt knew it was right!  Harry S. Truman knew it was right!  Ted Kennedy knew it was right!  And if you believe that it‘s right, then you‘ve got to help us finish this fight!  You‘ve got to stand with me, just like you did three years ago, and make some phone calls and knock on some doors, talk to your parents, talk to your friends.  Do not quit!  Do not give up!  We keep on going!  We are going to get this done!  We are going to make history!

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

SMERCONISH:  At Thedailybeast.com, Peter Beinart has a piece about what we‘ve learned about the president and his party through this health care fight.  Here‘s part of it.  Quote, “Why exactly Obama decided to double down on health care remains unclear.  It doesn‘t really matter that the health care reform bill he‘s fighting for isn‘t particularly left-wing.  For the netroots, a politician‘s ideological purity has always been less important than his willingness to resist pressure from the other side, which is exactly what Obama has just done.  Whether health care reform passes or not, Obama has embraced polarization over triangulation.”

So presuming health care passes, which wing wins?  Peter Beinart joins us now.  He‘s a senior political writer for Thedailybeast and a professor at City University in New York.  Peter, what‘s the answer to the question?  Which wing within the Democratic Party will be victorious?

PETER BEINART, DAILYBEAST.COM:  You know, for almost 10 years now, there‘s been a debate between people who thought the Democratic Party‘s problem was that Americans thought it was too liberal and people who thought the Democratic Party‘s problem was that Americans thought it was spineless.  And the people who said the Democratic Party‘s problem was that people thought it was spineless, which would be particularly the people in the netroots, said that you can‘t always follow the polls.  You have to do something that may be momentarily unpopular because if you do them, it‘ll show that you actually have principles and people will respect you for that in the long run.  That has ultimately what Barack Obama has decided to do here on health care.

SMERCONISH:  But it‘s a bill sans public option.  I mean, as compared to what some of the alternatives were, how liberal a piece of legislation is it?  Because what I think I hear you saying is that this is victory for the left within the Democratic Party, as compared to a more moderate or centrist DLC.

BEINART: Well, that‘s right. 

But, you know, in a way, the left in the Democratic Party, despite what the Tea Partiers say, is not really that far to the left, in fact.  These were not people who supported Dennis Kucinich in the primary.  These are people who supported Barack Obama or maybe John Edwards in the primary. 

Yes, this is not a radical bill, by any—by any stretch of the imagination.  But I think what impresses people, particularly in the netroots and the liberal grassroots, is that Obama was really willing to fight for something, take a big risk, a big gamble. 

They know it‘s not everything they would like, but they believe—and I happen to think they‘re probably right—that it‘s a really important step in terms of covering a lot of people who just don‘t have health care today. 

SMERCONISH:  So, name some names for me of those who epitomize the different factions within the Democratic Party, so that I can understand and appreciate, as an outsider looking in, who wins, who loses in all of this.

BEINART:  Well, the people who I think you were associated with the idea that it‘s basically a petty conservative country and Democrats always need to make sure not to be seen to be too liberal are people who would have been associated with the Democratic Leadership Council back during the Clinton days and some of Clinton‘s more—some of Clintons advisers. 

So, for instance, you saw Doug Schoen, who was one of Clinton‘s early advisers, coming out in a “Washington Post” op-ed a couple weeks ago, and saying, whoa, whoa, whoa, guys, the country is going to hate this.  It‘s going to have a—we‘re going to have a disastrous effect—whereas the people who really have been pushing for this are the netroots people at places called Daily Kos, or HuffingtonPost.com. 

They—as you said, they didn‘t agree with everything in this bill, but what‘s important to them is that Obama did not back down from a fight, even when the polling wasn‘t that great.  And I think, for them, who said, you know what, even if you stick up and take some unpopular positions, people will respect you for not backing down, that‘s what Obama has done. 

SMERCONISH:  Peter, speaking of criticism, here‘s President Obama today talking about the critics throughout history.  Let‘s listen together.  Then you can react. 

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  You know, the naysayers said that Social Security would lead to socialism.

(LAUGHTER)

OBAMA:  But the men and women of Congress stood fast and created that program that lifted millions out of poverty.

(CHEERING AND APPLAUSE)

OBAMA:  There were cynics that warned that Medicare would lead to a government takeover of our entire health care system, and that it didn‘t have much support in the polls.  But Democrats and Republicans refused to back down, and they made sure that our seniors had the health care that they needed and could have some basic peace of mind.

(CHEERING AND APPLAUSE)

(END VIDEO CLIP)

SMERCONISH:  If you listened to Congressman Steny Hoyer at the outset of the program, I mean, he didn‘t proclaim victory, but I asked if he has the votes, and what he said was that he expects that they will have the votes. 

If that‘s the case, and looking at the president, as you just did, what will folks look back on and say that was the turning point, that was the critical road that had to be passed in order for this to be successful for the D‘s?

BEINART:  I mean, the amazing thing, when historians go back and look back on this, will be those days right after Scott Brown‘s victory in Massachusetts, you know, when most people sitting in seats like—just like me, pundits, were basically saying, it‘s over, it‘s dead, he‘s got to do something very incremental, or he‘s got give up on health care altogether. 

We don‘t know—I certainly don‘t know—what the internal discussions were.  But the fascinating, I think, moment will be what role Obama—what Obama said right after Massachusetts, when it looked like the whole house was falling down, when he said, you know what, we‘re still going to do this. 

And it has been a remarkable kind of resurrection story, if you think about it, given where people thought health care was after the Scott Brown victory. 

SMERCONISH:  Well, what is interesting to me is that your analysis has focused on something about which I‘m not too conversant.  And that is the different strains within the Democratic Party and how this plays and who wins and who loses. 

Something I do know well is that those from the right, those within the GOP, they‘re both appalled and aghast at the idea that this passes. 

BEINART:  Yes. 

SMERCONISH:  But I think that, privately, politically, they‘re enthused, because they think, politically speaking, this is the death knell for the Democratic Party in the midterm elections. 

BEINART:  Yes, they do.

But I think the case that Obama was able to make was, look, we‘re going to take our lumps, no matter what, because you guys in Congress already voted for this, right?  We didn‘t pass Clinton-care in 1994.  It‘s not as if the Republicans took it easy on the Democrats because the Democrat gave up on the effort.

At least this way you get the Democratic base mobilized.  And I think in a way that‘s how Obama—why Obama has basically embraced this very polarized politics we live in.  Yes, he‘s not going to make Republicans love him anymore. 

There was a point in 2008 where they thought he might be this post-partisan president.  He‘s probably not going to be that.  But, therefore, it‘s all the more important that at least he get Democrats to be on board with him. 

SMERCONISH:  Hey, Peter Beinart, thanks very much for being here.  We appreciate it. 

BEINART:  My pleasure.

SMERCONISH:  Up next:  The opponents of health care reform are going all out.  We have got the video of a Georgia congressman who compared reform to the American Civil War, which he called the great war of Yankee aggression.

That‘s ahead in the “Sideshow.”

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

SMERCONISH:   Welcome back to HARDBALL.  Time for the “Sideshow.” 

Conservatives going out guns blazing in its final push against health care reform.  Their latest gripe?  The Democrats scheduled the big vote on a Sunday. 

Here‘s Republican Congressman Steve King of Iowa on Glenn Beck‘s radio show just yesterday. 

(BEGIN AUDIO CLIP) 

REP. STEVE KING ®, IOWA:  They intend to vote on the Sabbath during Lent to take away the liberty that we have right from God. 

GLENN BECK, HOST, “GLENN BECK”:  Oh, Steve, and I—you‘re a religious man? 

KING:  Yes. 

BECK:  Thank you for pointing that out.  Here‘s a group of people that have so perverted our faith and our hope and our charity, that it is—this an affront to God. 

(END AUDIO CLIP)

SMERCONISH:  The timing of the vote an affront to God.  Wow.  Talk about throwing everything but the kitchen sink. 

Speaking of last night, Republican Congressman Paul Broun of Georgia compared the fight over health care to the Civil War.  You have got to hear this to believe it. 

(BEGIN VIDEO CLIP)

REP. PAUL BROUN ®, GEORGIA:  If Obamacare passes, that free insurance card that‘s in people‘s pockets, it is going to be as worthless as a Confederate dollar after the war between the states, the great war of Yankee aggression. 

(END VIDEO CLIP)

SMERCONISH:  The great war of Yankee aggression.  Really?  I guess some battles die hard. 

On a lighter note, settling score—President Obama made good on a bet with Canadian Prime Minister Stephen Harper today by delivering, via Ambassador David Jacobson, a case of Molson Canadian beer.  He even tossed in an extra case of his brew of choice.  That would be Yuengling.  The wager was over the Olympic gold medal hockey game between Canada and the U.S.

The beer will be displayed at the Canadian Hockey Hall of Fame. 

Time for the “Big Number.”

We know Sarah Palin shopping around a reality television show about her home state of Alaska.  According to “Hollywood Reporter,” how much is she supposedly asking per episode? -- $1 million to $1.5 million, a pretty big payout.  Sarah Palin‘s looking for up to $1.5 million per episode of her Alaskan reality show—tonight‘s very “Big Number.” 

Up next: that vulgar anti-gay church group that protests at the funerals of fallen American servicepeople.  The Supreme Court of the United States will decide whether hateful speech like this should be protected.  We have got the father of a fallen Marine whose lawsuit is at the center of this storm.  And he‘s next. 

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MARY THOMPSON, CNBC CORRESPONDENT:  I‘m Mary Thompson with your CNBC “Market Wrap.”

Stocks retreating today, as Palm plummets and the dollar climbs—the Dow Jones industrial average breaking an eight-day winning streak with a 37-point decline, the S&P 500 sliding six points, and the Nasdaq falling nearly 17 -- despite all the declines, though, all three of the major indices ending slightly higher for the week. 

The dollar rallying against the Euro on lingering concerns about Greece‘s economic health.

And Palm shares tumbling nearly 30 percent on a flurry of ratings downgrades based on disappointing quarterly results—the company‘s fourth-quarter revenue outlook revised down to about half of what Wall Street was expecting. 

Google‘s shares falling more than 1 percent, ahead of an expected announcement on Monday about plans for their Chinese search engine. 

And health insurer Aetna at the top of the S&P after forecasting better-than-expected first-quarter results. 

Lastly, Coca-Cola adding 1.5 percent, after announcing its series of

management changes

That‘s it from CNBC, first in business worldwide—now back to

HARDBALL. 

SMERCONISH:  Welcome back to HARDBALL.

The Supreme Court will take up a case that will test the limits of First Amendment rights.  Should an anti-gay group be allowed to protest at the funerals of fallen soldiers. 

Al Snyder‘s son, Matthew, was killed while serving in Iraq in 2006. 

At the burial ceremony at his church, protesters held signs like these.  The group claims that the death of U.S. soldiers in Iraq and Afghanistan is God‘s punishment for America‘s tolerance of homosexuality. 

Now, just to give you an idea of who we‘re talking about here, I interviewed the lead protester, Fred Phelps, back in 2006.  Take a look at this. 

(BEGIN VIDEO CLIP, APRIL 11, 2006)

FRED PHELPS, PROTESTING AGAINST HOMOSEXUALITY:  God‘s wrath is upon this nation.  And he‘s been—he‘s pouring out that wrath by killing these soldiers and maiming these soldiers in Iraq, and sending them back in body bags. 

(CROSSTALK)

SMERCONISH:  ... today a result of the same policy?

PHELPS:  It is a very serious crime against God almighty for this nation to say that it‘s OK to be gay.  And that‘s the straits that we‘re fallen upon, as it was in the days of Lot. 

SMERCONISH:  I‘m having a Rod Serling moment here, sir. 

PHELPS:  They ate, they drank, they bought, they sold, they planted, they...

(CROSSTALK)

SMERCONISH:  Joining me—all right, enough of you.

PHELPS:  ... but the same day Lot went out of Sodom...

SMERCONISH:  Hey, zip it.

PHELPS:  ... it rained fire and brimstone from ...

SMERCONISH:  Cut his microphone.  I‘ve heard enough of this guy with the fiery eyes.  Enough of him.

(END VIDEO CLIP)

SMERCONISH:  Joining me now is Al Snyder, who took the protesters to court.  Now, he won.  And then a federal appellate court dismissed the case on First Amendment grounds.  Now the United States Supreme Court will hear the case. 

Please, accept our condolences on the passing of your son, who is an American hero. 

AL SNYDER, FATHER OF KILLED U.S. SOLDIER:  Thank you, Michael. 

SMERCONISH:  Set the stage for us.  It‘s 2006.  You‘re preparing to bury your boy.  And, all of a sudden, you learn that these folks, these clowns from this church are going to show up. 

How far in advance of the funeral did you know that they were coming? 

SNYDER:  I found out the day before the funeral that they were coming.  They sent out notices to media and to emergency, like the police and fire and sheriff‘s department. 

SMERCONISH:  And we should make it—we should make it clear, Mr.  Snyder, that your—your son had absolutely nothing to do with this group, their cause.  They just singled him out because of their cockamamie theory as to what drives war deaths. 

SNYDER:  That is correct. 

SMERCONISH:  On the day of the funeral itself, how far were they protesting from the public access or entrance to the church grounds? 

SNYDER:  They positioned themselves probably between 25 and 30 feet away from one of the main vehicle entrances of the church, Chris (sic). 

SMERCONISH:  In the funeral procession, did you take pains, did you take care to try and stage your placement in the car, so that Matthew‘s mother and sisters wouldn‘t have to see what you saw? 

SNYDER:  Yes. 

Basically, when we got into the limousine, I put myself facing the back of the limousine, with my two daughters up against the window on the sides, so that their back would be against them. 

SMERCONISH:  What did you see as you looked out those windows? 

SNYDER:  Well, basically, Chris, I saw a glimpse of the signs as we—as we neared the church.  I didn‘t see what the signs said at that point.  They were a little bit too far away. 

(CROSSTALK)

SMERCONISH:  You later learned the content of some of those signs. 

What did you learn were on those signs at your son‘s funeral? 

SNYDER:  Well, they were holding one sign probably about 30 feet away from the main entrance that depicted two men having anal intercourse.  They held signs that: “The pope‘s in hell.  Thank God for dead soldiers.  Semper fi fags.”

It was pretty rough. 

SMERCONISH:  Mr. Snyder, part of their warped thinking, sir, also extends to what they perceive to be the cause to be September 11.  Would you tell the HARDBALL audience how they view that event? 

SNYDER:  Well, during the trial, they submitted some DVDs.  And, for the life of us, we can‘t figure out why they did it.  But one of the DVDs starts out as a cartoon with bin Laden flying the airplanes into the World Trade towers. 

And then it goes to actual footage of people jumping to their deaths, while they‘re sitting there saying that they all deserved to die, even the mother with the—pregnant, deserved to die.  And, at the very end, there‘s a woman on there with a big smile on her face saying, thank God for 9/11. 

SMERCONISH:  So, in other words...

SNYDER:  And they did this...

SMERCONISH:  In other words, by—by this thought process, if it could be called that, September 11 was caused by an angry God who led al Qaeda to fly airplanes into the buildings, the Twin Towers, the Pentagon, Shanksville, PA, to seek retribution against the U.S. because of our leniency toward homosexuals, and that‘s the same causal connection for the passing of your son on a battlefield in Iraq? 

SNYDER:  Yes, sir.  That‘s correct.

SMERCONISH:  What would you say—allow me to play devil‘s advocate.  What would you say, sir, to those who find this repugnant—because I think we all find it absolutely despicable—but would make the case that your son gave his life so that this form of protest, as vile as it might be, could continue? 

SNYDER:  I don‘t buy that.  My son didn‘t die for that.  You know, hundreds of thousands of people have died in the history of this country.  And what an insult to those people that have died, to protect such a precious freedom. 

SMERCONISH:  And I would add to that, Mr. Snyder, there are plenty of instances where speech gets regulated: defamation, obscenity, shouting “fire” in a theater, so-called fighting words.  There are any number of instances where there have been restrictions recognized on speech.  And my argument—and I know your lawyer will capably say this to the Supreme Court—is that you had a right for a private gathering.  Your right to peaceably assemble and worship at the time of the funeral service, the mass of Christian burial for your boy. 

SNYDER:  That‘s correct.  The thing that really matters here, too, Michael, is this—we‘re private citizens.  I mean, you know, we‘re not public figures.  Even if you are a public figure, I don‘t agree with what they‘re doing.  But the Fourth Circuit did not even take into consideration that, you know, we were private citizens.  We had rights, too.  That—you know, what about my rights to bury Matt at my church?  What about my religious freedoms? 

SMERCONISH:  I want to show you—allow me to show you sir, if I may, an email that I received this week from one of Pastor Phelps‘ daughters, after I wrote about the Supreme Court accepting your case.  Here‘s what she wanted to say to me.  It says, in part, “it‘s evident you‘ve been convicted in your heart since that day, given that you‘re still stomping your twinkle-toed girlish foot in objection.” 

Then it goes on, quote, “meanwhile, all your ranting and raving, and mic-cutting, and trying to screamingly control the dialogue like the freak you are, changes nothing.  You still have a duty to obey god, little girl,” she said to me.  And in one more part, it reads, “ninnies like you have filled up the airwaves with undisciplined lies about the lord your God, and taken captivity a lot of silly women of both genders in this nation.” 

I‘m not Freud, but if you read between the lines, it‘s all about hang-ups over sexuality. 

SNYDER:  Yes.  I mean, I‘m not sure what the problem is there with them, Chris.  I—you know, I hear that they‘re really glad that this is going before the Supreme Court.  Yet they submitted a brief to the Supreme Court asking them not to hear the case.  So I don‘t know what their psycho-babble is about most of the time. 

SMERCONISH:  Mr. Snyder, one other aspect of this case that I think we should make clear; there have been some bikers who have done a service at funerals like that for your son. motorcycle enthusiasts, patriots who have come out and have created a buffer between the folks from the Westboro Baptist Church and families who unfortunately find themselves in a position such as you have found yourself, who are trying to worship and find a private moment.  Will you speak to that? 

SNYDER:  Yeah, the Patriot Guard, I always tell people, they were like the angels that came the day of Matt‘s funeral.  They were very good to us. 

SMERCONISH:  How did you keep your composure?  How did you not get out of the hearse and physically—Go ahead.

SNYDER:  It was—it was about Matt, you know.  And I really did—at the church, it was about Matt.  That‘s what I was concentrating on at that time. 

SMERCONISH:  I mean, I would say, Mr. Snyder, that one of the additional reasons that I hope you‘re successful in front of the United States Supreme Court is to keep the peace.  Because you, sir, showed tremendous restraint.  And I don‘t think it‘s a leap of faith to wonder if everyone could exhibit that level of restraint at a time when they‘re burying a loved one and are confronted by this insanity. 

SNYDER:  Well, Mike, one day they‘re going to run into the wrong person.  And that person is going to go off.  And when they do, I hope it doesn‘t affect an innocent person.  Some of the places they‘ve gone through -- gone to, they‘ve had bottles and bricks thrown through their car windows.  I mean, it‘s violent.  And somebody‘s going to get hurt, if somebody doesn‘t do something about it. 

SMERCONISH:  Thank you, Al Snyder.  Again our condolences on the passing of your son, a hero, back in 2006. 

SNYDER:  Thank you, Michael.

SMERCONISH:  Up next, the early read on 2012.  We‘ve got brand-new poll numbers showing how President Obama would fare in match-ups against Mitt Romney, Mike Huckabee and Sarah Palin.  And it‘s not all good news for the president.  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

SMERCONISH:  Continuing now with First Read‘s top ten list of potential Senate takeovers.  In number five, Arkansas, where Democrat Blanche Lincoln now faces a primary fight. 

Number four, Indiana, where Brad Ellsworth hopes to hang on to Evan Bayh‘s seat for the Dems. 

Number three, Nevada; Majority Leader Harry Reid is in real trouble. 

Number two, Joe Biden‘s old seat in Delaware, where Republican Congressman Mike Castle looks strong.

And the number one most likely Senate takeover, North Dakota.  Count on this one flipping to the GOP. 

Bottom line, all five of the top five are pick-up opportunities for the Republicans.  HARDBALL returns after this.

(COMMERCIAL BREAK)

SMERCONISH:  We‘re back.  Time now for the politics fix, with Chris Cillizza of the “Washington Post”.com and “Politicos‘s” Jeanne Cummings.

Jeanne, why has Senator John Ensign been able to survive at a time when Eric Massa and others have had to exit their political careers? 

JEANNE CUMMINGS, “POLITICO”:  It‘s a good question.  I mean, there‘s no mechanism by which the Republicans can remove him—or the Senate can remove him from office at this point.  He‘s not been charged with anything.  He‘s not been cited with a sanction from the Ethics Committee. 

So they don‘t have anything to hold against him, except an on-going investigation.  He did have one minor leadership position within the Republican caucus.  He was head of the Policy Committee.  And the caucus did demand that he step down from that, which for the Republicans is, you know, trying to step up from the way that they handled Mark Foley and some of the other scandals in previous years.  They did try—they took a little bit of power that they had.  They did exercise it to remove him from the leadership. 

SMERCONISH:  Chris, what is it, a lack of a tickle fight?  Is it not salacious enough by 2010 standards? 

CHRIS CILLIZZA, “THE WASHINGTON POST”:  You know, Michael, I think part of it is just that he doesn‘t want to go.  He refuses to go.  You know, in some ways, as Jeanne pointed out, there isn‘t a mechanism.  Usually, public opinion sort of reaches critical mass and these people make the decision, OK, I‘m not going to go. 

But if you choose to sort of buck that, if you choose to just stay, until there‘s some conclusion to this investigation, until he‘s either charged with something or cleared of it, he can probably stay.  Again, we always have to differentiate between survival sort of generally in life, versus political survival. 

From a political perspective, John Ensign‘s goose is pretty well cooked, whether he stays in office until 2012 or he doesn‘t.  But it is hard to remove him, barring some sort of obvious, you know, conviction on something, which we don‘t have.  And so he chooses to stay, even though it‘s probably pretty clear that many within his conference would prefer he go. 

(CROSS TALK)

CUMMINGS:  If I could just make a cynical point about why they stay. 

SMERCONISH:  Real quick. 

CUMMINGS:  One reason to stay is, if you want to keep your legal defense fund nice and full, then you need to be in office. 

SMERCONISH:  Right.  You need the clout.  I get it.  Jeanne, here‘s my Census Form.  I filled it out.  It‘s sealed and ready to go.  I don‘t know if you filled yours out yet.  But question number nine on the Census form, I checked the box for a white guy.  It‘s got some folks angry.  It is what is the person whose responding‘s race?  And some conservatives are encouraging checking the other box and writing in American.  Jeanne Cummings, what drives this? 

CUMMINGS:  Well, what drives it is some ridiculous notion that if we ask people what their race is, that we‘re somehow—for conservatives to be concerned that we‘re somehow trying to identify, tag them in some nefarious way.  I mean, if the governors hear about this, I suppose the governors of both conservative states and liberal states will push very hard back against that message, because there are real government programs that are still in place, that are designed to help both minorities and low income communities.  And many of those—the funding for those are based on formulas based on Census data. 

And so for governors of conservative states and liberal states, it is critical that people fill these forms out properly, so that they have the right count and they can get their fair share of the federal funds that are allocated to help people. 

SMERCONISH:  Chris Cillizza, I‘ve got just a minute left.  I want to show you some new public policy poll numbers that shows President Obama tied with Mitt Romney at 44 in a hypothetical 2012 match-up.  The president just two points ahead of Mike Huckabee, 46 to 44.  Doing better against Governor Palin, leading her by eight points, 49 to 41.  Your reaction? 

CILLIZZA:  I‘m not in the business of saying it‘s too early, because I write about this stuff every day.  It would be cynical for me to say—it would be hypocritical to say it‘s too early. 

Look, here‘s what I think: I think what you have seen in the past year is a peeling away of independents from the Democratic party and from President Obama.  As a result, I think some of them have jumped in the Republican party.  Most of them, I think, when we get down to 2012, when people are really paying attention, are going to be that undecided category.  And we‘re going to see a focus on them. 

I think what you‘re seeing is there‘s a considerable amount of people out there who aren‘t going to vote for President Obama.  They‘re going to vote for whoever the alternative is. 

But I still think there‘s going to be an independent streak of 10 percent, 11 percent of the voters that‘s going to decide this.  This is, I would guess, going to be a little bit of a closer election in 2012 than we had in 2008.  That said, predicting that far in the advance—I don‘t even predict about the midterm elections.  So predicting about the next presidential election, it‘s a little bit of a fool‘s errand. 

SMERCONISH:  Jeanne Cummings, who‘s the strongest, as it stands right now?

CUMMINGS:  As it stands right now, it‘s clearly Mitt Romney.  Here‘s the danger in that poll number: even in the last campaign, it was pretty clear from polling that Mitt Romney was the strongest Republican general election candidate in that primary.  Romney‘s problem is getting past the primary.  And he hasn‘t gotten over the hurdles he needs to get through the primary just yet. 

SMERCONISH:  Never too soon to start thinking about this.  Thank you, Chris Cillizza.  Thank you, Jeanne Cummings. 

When we return, I‘ll have some thoughts about how far government should go in the war on obesity in this country.  You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

SMERCONISH:  In my hometown, Chris‘ hometown of Philadelphia, there‘s a huge debate taking place how government should reign in our expanding waistlines.  First came the war on trans-fat, then calorie posting on menus.  This month, a New York legislator sought to remove salt from state restaurants. 

And now comes Philly Mayor Michael Nutter‘s proposed two cents an ounce tax on sugary drinks.  He‘s not alone.  Colorado state legislature approved such a tax.  California and Kansas are considering it.  In New York, Bloomberg and Paterson are both on-board. 

Believe me, I understand the reasoning behind it.  Obesity threatens our country‘s physical and fiscal health.  It accounts for 9.1 percent of all medical spending.  That‘s up from 6.5 percent in 1998. 

Americans 30 or more pounds overweight cost nearly 150 billion in weight-related medical bills in 2008 alone.  But not all of it is fuelled by sugary drinks.  It‘s a complex problem aggravated by any number of factors, larger portions, less exercise, lax eating habits. 

And the logic behind a tax or outright ban could be extended to almost anything.  Ban salt?  Why not sugar too?  Tax Mountain Dew?  How about Milky Ways?  Where does it end?

I can see it now; first, they came for my salt on my margarita glass.  Then they came for my margarita. 

Here‘s what I say: let me decide how many times I want to shake the salt shaker.  Sure, tell me how many calories are in my Big Mac, but don‘t make healthy Americans shoulder the economic burden of the guy drinking too many Big Gulps.

Because no matter what the fad diet of the day says, the key to weight loss is the same as it‘s ever been: eat less, exercising more.  Taxing soft drinks might get people to drink less, but it won‘t not get them outside or into the gym. 

So instead of ruining dinner, the government should be rewarding people who do take care of their bodies.  Let‘s give a break to those who aren‘t dependent on 44-ounce sweetened drinks and super-sized fries, people who work out every day. 

How is this for health care reform: want more coverage or lower co-pays?  Get on a Stair Master. 

That‘s HARDBALL for now.  Thanks for being with us.  Catch us on Monday night at 5:00 and 7:00 Eastern.  Right now, it‘s time for “THE ED SHOW” with Ed Schultz.

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