[Senate Hearing 111-1125]
[From the U.S. Government Publishing Office]


                                ------                                S.
                                                          Hrg. 111-1125
 
                  COMPILATION OF HEARINGS AND MARKUPS

=======================================================================


                          HEARINGS AND MARKUPS

                               before the

                           COMMITTEE ON RULES

                           AND ADMINISTRATION

                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION



                               ----------                              

      February 2, 2010; April 15, 2010; May 5, 2010; May 25, 2010;
                           and July 20, 2010

                               ----------                              

                  COMPILATION OF HEARINGS AND MARKUPS




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67-685                    WASHINGTON : 2012
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                 COMMITTEE ON RULES AND ADMINISTRATION

                 CHARLES E. SCHUMER, New York, Chairman

* ROBERT C. BYRD, West Virginia      ROBERT F. BENNETT, Utah
DANIEL K. INOUYE, Hawaii             MITCH McCONNELL, Kentucky
CHRISTOPHER J. DODD, Connecticut     THAD COCHRAN, Mississippi
DIANNE FEINSTEIN, California         KAY BAILEY HUTCHISON, Texas
RICHARD J. DURBIN, Illinois          SAXBY CHAMBLISS, Georgia
BEN NELSON, Nebraska                 LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington             JOHN ENSIGN, Nevada
MARK L. PRYOR, Arkansas              PAT ROBERTS, Kansas
TOM UDALL, New Mexico
MARK R. WARNER, Virginia

                 Jean Parvin Bordewich, Staff Director
               Mary Suit Jones, Republican Staff Director

                Jennifer Griffith, Deputy Staff Director
                      Jason A. Abel, Chief Counsel
        Adam D. Ambrogi, Administrative and Legislative Counsel
                 Veronica Gillespie, Elections Counsel
   Carole Blessington, Administrative Assistant to the Staff Director
                          Sonia Gill, Counsel
                       Julia Richardson, Counsel
                  Josh Brekenfeld, Professional Staff
                    Lauryn Bruck, Professional Staff

             Shaun Parkin, Republican Deputy Staff Director
                Paul Vinovich, Republican Chief Counsel
             Michael Merrell, Republican Elections Counsel
               Abbie Platt, Republican Professional Staff
               Trish Kent, Republican Professional Staff
            Rachel Creviston, Republican Professional Staff

                     Lynden Armstrong, Chief Clerk
                  Matthew McGowan, Professional Staff

* Senator Robert C. Byrd, West Virginia, was a member of the Committee 
    during the 111th Congress until his death on June 28, 2010. Senator 
    Carte P. Goodwin, West Virginia, was a member of the Committee 
    during the 111th Congress from July 20, 2010, until November 15, 
    2010. Senator Joe Manchin III, West Virginia, was a member of the 
    Committee from November 15, 2010, until the end of the 111th 
    Congress.

In addition to this compilation of hearings, the Committee on Rules and 
    Administration also published a hearing compilation entitled, 
    ``Examining the Filibuster'' (S. Hrg. 111-706). This publication 
    included hearings the Committee held during the Second Session of 
    the 111th Congress that are not included in this compilation. 
    (http://www.gpo.gov/fdsys/pkg/CHRG-111shrg62210/pdf/CHRG-
    111shrg62210.pdf)

Note: Archived webcasts of all hearings and an electronic version of 
    this report are available at http://rules.senate.gov.


                            C O N T E N T S

                              ----------                              

                            February 2, 2010
        HEARING--CORPORATE AMERICA VS. THE VOTER: EXAMINING THE
   SUPREME COURT'S DECISION TO ALLOW CORPORATE SPENDING IN ELECTIONS
                         Opening Statement of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................     1
Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................     3

                             Testimony of:

Hon. Russ Feingold, a U.S. Senator from the State of Wisconsin...     4
Hon. John Kerry, a U.S. Senator from the State of Massachusetts..     5
Mr. Steve Bullock, Attorney General, State of Montana, Helena, 
  Montana........................................................     9
Ms. Allison Hayward, Professor, George Mason University School of 
  Law, Arlington, VA.............................................    11
Mr. Edward B. Foley, The Robert M. Duncan/Jones Day Designated 
  Professor in Law, Moritz College of Law, The Ohio State 
  University, Columbus, OH.......................................    12
Mr. Steve Hoersting, Center for Competitive Politics, Alexandria, 
  VA.............................................................    13

                         Opening Statement of:

Hon. Tom Udall, a U.S. Senator from the State of New Mexico......    15

                             Testimony of:

Mr. Fred Wertheimer, President, Democracy 21, Washington, DC.....    16
Ms. Heather Gerken, J. Skelly Wright Professor of Law, Yale Law 
  School, New Haven, CT..........................................    18

                         Prepared Statement of:

Mr. Steve Bullock, Attorney General, State of Montana, Helena, 
  Montana........................................................    40
Ms. Allison Hayward, Professor, George Mason University School of 
  Law, Arlington, VA.............................................    45
Mr. Edward B. Foley, The Robert M. Duncan/Jones Day Designated 
  Professor in Law, Moritz College of Law, The Ohio State 
  University, Columbus, OH.......................................    52
Mr. Steve Hoersting, Center for Competitive Politics, Alexandria, 
  VA.............................................................    70
Mr. Fred Wertheimer, President, Democracy 21, Washington, DC.....   102
Ms. Heather Gerken, J. Skelly Wright Professor of Law, Yale Law 
  School, New Haven, CT..........................................   118

                  Materials Submitted for the Record:

Memorandum Submitted by Senator Charles E. Schumer entitled 
  ``2008 Campaign Finance Data'' written by the Congressional 
  Research Service, February 1, 2010.............................   133
Editorial Submitted by Senator Russ Feingold in the Janesville 
  Gazette, ``Court decision opens floodgates for corporate money 
  in campaigns,'' January 31, 2010...............................   138
Editorial Submitted by Senator Russ Feingold in The Washington 
  Post, ``Who is helped, or hurt, by Citizens United decision,'' 
  January 24, 2010...............................................   140
Editorial Submitted by Senator Russ Feingold in USA Today, ``High 
  court opens the floodgates''...................................   141
Statement Submitted by Senator Robert C. Byrd....................   143
Statement Submitted by Brennan Center for Justice................   146
Statement Submitted by Center for Responsive Politics............   195
Statement Submitted by Common Cause..............................   199
Statement Submitted by Mr. Jonathan Cocks, Richardson, Texas.....   202
Statement Submitted by Organization for International Investment 
  (OFII).........................................................   204
Statement Submitted by People for the American Way...............   209
Statement Submitted by Public Campaign...........................   212
Statement Submitted by Public Citizen............................   216
Statement Submitted by Service Employees International Union 
  (SEIU).........................................................   221
Statement Submitted by Sunlight Foundation.......................   224
Statement Submitted by U.S. PIRG.................................   228
Statement Submitted by Former Senators Bill Bradley, Bob Kerrey, 
  Warren Rudman, and Alan Simpson, Co-Chairs of Americans for 
  Campaign Reform................................................   230
Statement Submitted by Campaign Legal Center.....................   232

                       Questions for the Record:

Hon. Mark Pryor, a U.S. Senator from the State of Arkansas, to 
  Committee witnesses............................................   239
                              ----------                              

                             April 15, 2010
 HEARING--NOMINATION OF STEPHEN T. AYERS TO BE ARCHITECT OF THE CAPITOL
                         Opening Statement of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................   249
Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................   250
Hon. Thad Cochran, a U.S. Senator from the State of Mississippi..   251
Hon. Mark Pryor, a U.S. Senator from the State of Arkansas.......   252

                             Testimony of:

Mr. Stephen T. Ayers, AIA, Acting Architect of the Capitol.......   253

                         Prepared Statement of:

Mr. Stephen T. Ayers, AIA, Acting Architect of the Capitol.......   260

                  Materials Submitted for the Record:

Statement Submitted by Advisory Council on Historic Preservation.   265
Statement Submitted by American Institute of Architects..........   266
Statement Submitted American Institute of Architects, New York 
  State..........................................................   273
Statement Submitted by American Institute of Architects, Utah....   274
Statement Submitted by Construction Management Association of 
  America........................................................   276
Statement Submitted by National Conference of State Historic 
  Preservation Officers..........................................   277
Statement Submitted by U.S. Green Building Council...............   279

                        Questions for the Record

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York, to Mr. Ayers......................................   280
                              ----------                              

                             April 22, 2010
 HEARING--EXAMINING THE FILIBUSTER: HISTORY OF THE FILIBUSTER 1789-2008

Hearing record published in S. Hrg. 111-706, Examining the 
  Filibuster. (http://www.gpo.gov/fdsys/pkg/CHRG-111shrg62210/
  pdf/CHRG-111shrg62210.pdf)
                              ----------                              

                              May 5, 2010
 HEARING--VOTING BY MAIL: AN EXAMINATION OF STATE AND LOCAL EXPERIENCES
                         Opening Statement of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................   293
Hon. Pat Roberts, a U.S. Senator from the State of Kansas........   295

                             Testimony of:

Hon. Ron Wyden, a U.S. Senator from the State of Oregon..........   296
Hon. Susan Davis, a U.S. Representative from the State of 
  California.....................................................   298
Hon. Kate Brown, Oregon Secretary of State, Salem, Oregon........   303
Mr. John Fortier, The American Enterprise Institute, Washington, 
  DC.............................................................   305
Mr. Rokey W. Suleman, II, Executive Director, DC Board of 
  Elections and Ethics, Washington, DC...........................   307

                         Prepared Statement of:

Hon. Ron Wyden, a U.S. Senator from the State of Oregon..........   318
Hon. Susan Davis, a U.S. Representative from the State of 
  California.....................................................   321
Hon. Kate Brown, Oregon Secretary of State, Salem, Oregon........   326
Mr. John Fortier, The American Enterprise Institute, Washington, 
  DC.............................................................   331
Mr. Rokey W. Suleman, II, Executive Director, DC Board of 
  Elections and Ethics, Washington, DC...........................   351

                  Materials Submitted for the Record:

Statement Submitted by Senator Ron Wyden--Incident in Curry 
  County.........................................................   355
Statement Submitted by Representative Susan Davis--Michigan 
  Association of County Clerks...................................   359
Statement Submitted by Senator Ron Wyden--History of Vote by Mail 
  in Oregon......................................................   360
Statements Submitted by Election Assistance Commission...........   361
    2008 Election Administration and Voting Survey...............   361
    Election Management Guidelines Chapter 7: Absentee Voting and 
      Vote by Mail...............................................   477
    Absentee Voting and Vote by Mail Quick Start Guide...........   488
Statement Submitted by American Association of People with 
  Disabilities...................................................   500
Statement Submitted by Fair Elections Legal Network..............   503
Statement Submitted by Fleet Reserve Association (FRA)...........   504
Statement Submitted by County of Santa Barbara, California Clerk.   505
Statement Submitted by Lawyers' Committee for Civil Rights Under 
  Law............................................................   507
Statement Submitted by Professor Michael P. McDonald, George 
  Mason University...............................................   509
Statement Submitted by National Association of Counties (NACo)...   521
Statement Submitted by National Association of Postal Supervisors   522
Statement Submitted by the National Conference of State 
  Legislatures...................................................   525
Statement Submitted by People for the American Way...............   528
Statement Submitted by Postal Regulatory Commission..............   530
Statement Submitted by Honorable Sam Reed, Oregon Secretary of 
  State..........................................................   532
Statement Submitted by Verified Voting...........................   534
                              ----------                              

                              May 19, 2010
    HEARING--EXAMINING THE FILIBUSTER: THE FILIBUSTER TODAY AND ITS 
                              CONSEQUENCES

Hearing record published in S. Hrg. 111-706, Examining the 
  Filibuster. (http://www.gpo.gov/fdsys/pkg/CHRG-111shrg62210/
  pdf/CHRG-111shrg62210.pdf)
                              ----------                              

                              May 25, 2010
   HEARING--NOMINATION OF WILLIAM J. BOARMAN TO BE THE PUBLIC PRINTER
                         Opening Statements of:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York....................................................   535
Hon. Robert Bennett, Ranking Member, a U.S. Senator from the 
  State of Utah..................................................   536

                             Testimony of:

Hon. Benjamin L. Cardin, a U.S. Senator from the State of 
  Maryland.......................................................   537
Mr. William J. Boarman, of Maryland, nominee to be Public Printer   538
Hon. Steny Hoyer, a U.S. Representative from the State of 
  Maryland.......................................................   540

                         Prepared Statement of:

Mr. William T. Boarman of Maryland...............................   550
Hon. Barbara A. Mikulski, a U.S. Senator from the State of 
  Maryland.......................................................   555

                   Statements for the Hearing Record:

Statement Submitted by Representative Robert A. Brady............   556
Statement Submitted by American Library Association..............   558
Statement Submitted by International Brotherhood of Teamsters, 
  Graphic Communications Conference..............................   562
Statement Submitted by American Association of Law Libraries.....   566
Statement Submitted by Buffalo News..............................   569
Statement Submitted by International Brotherhood of Teamsters....   570
Statement Submitted by Sun Times Media...........................   573

                   Questions for the Hearing Record:

Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State 
  of New York, to Mr. Boarman....................................   575
Hon. Thad Cochran, a U.S. Senator from the State of Mississippi, 
  to Mr. Boarman.................................................   580
Hon. Lamar Alexander, a U.S. Senator from the State of Tennessee, 
  to Mr. Boarman.................................................   583
                              ----------                              

                             June 23, 2010
 HEARING--EXAMINING THE FILIBUSTER: SILENT FILIBUSTERS, HOLDS AND THE 
                      SENATE CONFIRMATION PROCESS

Hearing record published in S. Hrg. 111-706, Examining the 
  Filibuster. (http://www.gpo.gov/fdsys/pkg/CHRG-111shrg62210/
  pdf/CHRG-111shrg62210.pdf)
                              ----------                              

                             July 20, 2010

MARKUP--NOMINATION OF WILLIAM BOARMAN TO BE PUBLIC PRINTER.......   586
                              ----------                              

                             July 28, 2010
  HEARING--EXAMINING THE FILIBUSTER: LEGISLATIVE PROPOSALS TO CHANGE 
                           SENATE PROCEDURES

Hearing record published in S. Hrg. 111-706, Examining the 
  Filibuster. (http://www.gpo.gov/fdsys/pkg/CHRG-111shrg62210/
  pdf/CHRG-111shrg62210.pdf)
                              ----------                              

                           September 22, 2010
  HEARING--EXAMINING THE FILIBUSTER: LEGISLATIVE PROPOSALS TO CHANGE 
                           SENATE PROCEDURES

Hearing record published in S. Hrg. 111-706, Examining the 
  Filibuster. (http://www.gpo.gov/fdsys/pkg/CHRG-111shrg62210/
  pdf/CHRG-111shrg62210.pdf)
                              ----------                              

                           September 29, 2010
HEARING--EXAMINING THE FILIBUSTER: IDEAS TO REDUCE DELAY AND ENCOURAGE 
                          DEBATE IN THE SENATE

Hearing record published in S. Hrg. 111-706, Examining the 
  Filibuster. (http://www.gpo.gov/fdsys/pkg/CHRG-111shrg62210/
  pdf/CHRG-111shrg62210.pdf)


CORPORATE AMERICA VS. THE VOTER: EXAMINING THE SUPREME COURT'S DECISION 
           TO ALLOW UNLIMITED CORPORATE SPENDING IN ELECTIONS

                              ----------                              


                       TUESDAY, FEBRUARY 2, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
Room SR-301, Russell Senate Office Building, Hon. Charles E. 
Schumer, Chairman of the Committee, presiding.
    Present: Senators Schumer, Feinstein, Durbin, Nelson, 
Murray, Pryor, Udall, and Bennett.
    Staff present: Jean Bordewich, Staff Director; Jennifer 
Griffith, Deputy Staff Director; Jason Abel, Chief Counsel; 
Veronica Gillespie, Elections Counsel; Adam Ambrogi, Counsel; 
Sonia Gill, Counsel; Julia Richardson, Counsel; Lauryn Bruck, 
Professional Staff; Lynden Armstrong, Chief Clerk; Matthew 
McGowan, Professional Staff; Justin Perkins, Staff Assistant; 
Mary Jones, Republican Staff Director; Shaun Parkin, Republican 
Deputy Staff Director; Paul Vinovich, Republican Chief Counsel; 
and Michael Merrell, Republican Counsel.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. The Rules Committee shall come to order. 
Good morning.
    First, I would like to thank my friend, Ranking Member 
Bennett, for joining me here at this hearing so quickly after 
the important Supreme Court decision on January 21st in the 
case of Citizens United v FEC. Since the decision was handed 
down, most of us here in this room, including myself, have been 
carefully examining its implications. And today we are here to 
further examine its implications and listen to our 
distinguished panels.
    Put bluntly, I believe that the Supreme Court's opinion in 
Citizens United is corrosive to our democracy. I feel that 
strongly about it. And I believe that the title of our hearing, 
``Corporate America vs. the Voter,'' really accurately 
describes the immediate ramifications of this decision. Perhaps 
my colleague would want an addendum to that, I realize, but we 
will leave that to him. And while this is the first 
congressional hearing to be held in response to this ruling, it 
is certainly not going to be the last, as other committees have 
already announced plans to have their hearings.
    Furthermore, concern over this decision is obviously not 
just limited to Members of Congress. Last week, President Obama 
voiced his concerns about the impact of the ruling in his State 
of the Union address. It is rare, in fact, for a Supreme Court 
opinion to attract so much attention from all parts of the 
country.
    The changes that are likely to result from the Citizens 
United case have the potential to be disastrous to the health 
of our democracy, inviting unprecedented spending and influence 
by wealthy special interests. The ruling encourages them to get 
involved in races large and small; in primaries and general 
elections and run-offs; and in Federal, State, and local 
contests. It goes across the political spectrum.
    So get ready. If this ruling is left unchallenged, if 
Congress fails to act, our country will be faced with big, 
moneyed interests spending, or threatening to spend, millions 
on ads against those who dare to stand up to them. The threat 
alone is enough to chill debate and distort the political 
process in ways that hurt the voice and influence of the 
average citizen.
    Stopping those big bonuses by bailed-out firms? Forget 
about it. Pushing back against polluters to protect the health 
of our children? Maybe no more. Regulating dangerous chemicals 
in drugs and children's toys? Much less of a chance.
    This opinion can allow foreign interests to influence our 
elections, special interest spending to go unchecked and 
undisclosed, and corporate America to rule the day. It did not 
have to be that way.
    I believe the Supreme Court took a tortuous path to expand 
the Citizens United case. It chose to review, and then strike 
down, the earlier Austin v. Michigan Chamber of Commerce 
decision, and to overturn more than a century of campaign 
spending policy stretching back to the Tillman Act of 1907.
    The Supreme Court turned its back on previous rulings and 
went out of its way to broaden its decision in service to a 
particular policy goal. That should make all of us--regardless 
of where we are on the political spectrum--deeply concerned and 
determined to act. The Roberts Court has turned its back on 
stare decisis--respecting and following the precedents set by 
earlier Court opinions--simply because five Justices did not 
like the way previous opinions went.
    I look forward to hearing all of our witnesses who have 
come to share their views at this hearing. I am not going to 
prejudge the best way going forward. We are not going to 
issue--we are talking, of course, and thinking seriously about 
what to do, but we are not going to talk about that today. We 
are here to listen and get people's suggestions.
    I am very interested, of course, in what both Senators 
Feingold and Kerry, who have had long history here, believe. 
And while Congressman Van Hollen and I will be introducing a 
bill shortly, today is a day to listen to ideas and the sharp 
analysis that will be presented.
    And before we get to our distinguished first panel, I know 
my good friend and colleague, Ranking Member Bennett, would 
like to say a few words.

              OPENING STATEMENT OF SENATOR BENNETT

    Senator Bennett. Thank you very much, Mr. Chairman. I 
appreciate the opportunity to respond, and I look forward to 
the information that we will get as a result of this hearing.
    As I think everyone knows, I am a First Amendment hawk. I 
am one of a very small number of conservative Republicans who 
voted against the flag-burning amendment simply because I felt 
it intruded on our First Amendment rights. I feel very strongly 
about protection of the First Amendment, and as you indicated, 
my interpretation of the Supreme Court's ruling was different 
than yours. And let me give you this to think about as an 
example of what I think they did in their decision.
    Let us go back just a few weeks ago to the eve of a Federal 
election. A corporate employee went on the air to describe a 
candidate in that election as, among other things, and I quote, 
``an irresponsible, homophobic, racist, reactionary, supporter 
of violence against women and against politicians with whom he 
disagrees.''
    Now, this statement was made in a corporate studio, 
broadcast with corporate money, directed to the voting public, 
clearly designed to influence their opinion of the candidate--
which it may have done, but perhaps not in the way the employee 
had intended.
    Now, in spite of this clear intent to influence an election 
with corporate money, the corporate employee responsible for 
these statements was able to broadcast them without any fear of 
violating our election laws. He did not have to hire counsel to 
advise him if the statement could be legally broadcast. And he 
did not have to check with the FEC to see if they would permit 
him to make the statement before doing so.
    These statements were made before the Citizens United 
decision was handed down, and they could be made with the full 
confidence that there would be no legal consequence because the 
corporation for which this employee worked was a media 
corporation.
    Had any other corporation used their treasury funds to 
broadcast a similar statement on the eve of an election, they 
would have been guilty of a crime.
    Now, that was on a Monday. But by Friday of that week, 
things had changed: the Supreme Court said that the First 
Amendment applies to all Americans, and not just those who own 
their own TV shows.
    And with this decision, all Americans can know they are 
free to speak their minds on issues of public concern without 
having to get the permission of the Government.
    All Americans can make their views known about Federal 
elections without having to hire counsel to vet their words and 
make sure they are abiding by the law.
    All Americans can praise or criticize office holders 
without having to worry about committing a crime.
    And if I may, as a comment on this statement I have quoted, 
all Americans have the right to make fools of themselves by 
going over the top, if they want to, without worrying about 
having the Government come in and say, ``You cannot do this.''
    That is the essence of the First Amendment, that everybody 
should be treated alike, everybody should have the same rights, 
everybody should be able to speak freely and boldly, and 
sometimes foolishly, with respect to an election. That is a 
good thing. It should not be feared. It should be cheered and 
celebrated.
    So for that reason, I am supportive of the Supreme Court 
decision and look forward to the testimony of our witnesses.
    Chairman Schumer. Thank you, Senator Bennett.
    Senator Feingold has to chair a hearing very shortly, so we 
are going to, with Senator Kerry's permission, call on Senator 
Feingold first, despite seniority. And I know Senator Udall 
wanted to make a brief statement. We will let members--we will 
give a little extra time so members can make brief statements 
before their questioning, if that is okay with you, Senator 
Udall, Senator Feinstein.
    Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A UNITED STATES SENATOR 
                  FROM THE STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman, Mr. Ranking 
Member, and for your courtesy, Senator Kerry, for allowing me 
to testify at this point.
    The Supreme Court's decision in Citizens United was a 
tragic error. The Court reached out to change the landscape of 
election law in a drastic and wholly unnecessary way. By acting 
in such an extreme and unjustified manner, the Court has badly 
damaged its own integrity. More important, it has harmed our 
democracy in ways that may not be fully understood today, but 
will likely become clear over the next few election cycles.
    There is, of course, a debate about how much impact the 
Court's decision will have. The Wisconsin Right to Life 
decision in 2007 had already significantly undermined the 
electioneering communications provision of McCain-Feingold. But 
by completely removing all restraints on political spending 
from corporate treasuries, Citizens United has unleashed a 
threat of enormous spending that simply was not possible 
before. And as we all know, a threat of retaliation at election 
time may be all that is needed to make a legislator think twice 
about opposing the already powerful voice of corporate America.
    All it takes is one Senator losing a close election because 
of a last-minute corporate advertising barrage, and everyone 
will constantly have one eye on what might happen to them. That 
is why this decision is so dangerous. It will result in 
legislators being even more responsive to corporations rather 
than voters.
    Now, the underlying rationale for the Court's decision--
that corporations must have First Amendment rights in the 
political process equal to those of citizens--makes no sense. 
Corporations cannot vote or run for office, they do not have 
feelings or thoughts. They do not speak or make decisions 
except through individuals--their corporate officers, their 
boards of directors, and their lobbyists. What they do have is 
the ability to make huge amounts of money, thanks in part to 
laws passed by the people's representatives. So the Court's 
ruling has, in effect, produced a Frankenstein--the people 
created corporations, but the Court has denied the people the 
power to prevent corporations from dominating the entire 
political system.
    Mr. Chairman, I have published several op-eds in the last 
few weeks concerning what I feared might be the likely effects 
of the Citizens United decision. I ask that they be put in the 
record of the hearing.
    Chairman Schumer. Without objection.
    [The op-eds - Appendix A:]
    Senator Feingold. Thank you, Mr. Chairman.
    Now, one bright spot in the Court's ruling was its 
recognition that disclosure requirements do not violate the 
constitutional rights of corporations. I have long believed 
that disclosure is a necessary, though not sufficient, 
ingredient of campaign finance regulation. After all, Americans 
have much more important things to discuss around the kitchen 
table than the latest expenditure reports filed at the FEC or 
the even the latest news story based on those reports. But at 
the very least, we must make it possible for people who have 
the right to cast votes to know exactly who is trying to 
influence their votes.
    You and I have discussed other components of possible 
legislation: a new definition of ``coordination,'' a 
prohibition of election spending by Government contractors and 
recipients of bailout funds, a tightening of the provision in 
existing law concerning contributions and expenditures by 
foreign corporations. And I support these kinds of measures. 
They certainly do not reverse the Court's decision; no 
legislation can. But they may diminish some of the decision's 
worst effects.
    Let me note one final thing as you begin your work on a 
bill. When we developed the McCain-Feingold bill, we paid close 
attention to previous First Amendment and campaign finance 
decisions of the Supreme Court and tried very hard to ensure 
that it would be upheld. Major decisions like Shrink Missouri, 
FEC v. Beaumont, and Colorado Republican II came down during 
the 7 years we worked on that bill, and we took a hard look at 
the legislation in light of each new decision. We knew our bill 
would be challenged, but we felt we had strong and good-faith 
arguments in support of the constitutionality of each and every 
provision. And we were right. The Court upheld the bill almost 
in its entirety. It took a change in membership on the Court to 
reverse that decision. Even today, of course, the centerpiece 
of our bill--the prohibition on soft-money contributions to 
political parties--is still in place. And I am, of course, 
pleased about that.
    As legislators, we have a duty to carefully consider the 
constitutional questions raised by legislation. But we are not 
mind readers, nor can we predict the future. So I urge you to 
do your duty and not be dissuaded from acting by fear of the 
Court. This terrible decision deserves as robust a response as 
possible. Nothing less than the future of our democracy is at 
stake.
    I do thank you, Mr. Chairman.
    Chairman Schumer. Thank you, Senator Feingold, and we 
understand that you have to go chair a hearing, so thank you 
for being here, and we will follow your orders.
    Senator Kerry?

 STATEMENT OF HON. JOHN F. KERRY, A UNITED STATES SENATOR FROM 
                   THE STATE OF MASSACHUSETTS

    Senator Kerry. Mr. Chairman, Ranking Member Bennett, and 
members of the Committee, I am delighted to be able to be here, 
and thank you for the opportunity to share a few thoughts with 
you. I appreciate your swift attention to this issue.
    In my judgment, The Supreme Court has issued a decision--
and I would say this particularly to you, Senator Bennett, 
based on your comments a moment ago, where you talked about how 
everybody deserves the same rights, everybody deserves the 
opportunity to speak. ``Everybody''--that is a person. That 
refers to people. That is who rights attach to under our 
Constitution. A corporation is not a person, and from what I 
remember in law school, it was never intended to be. It is a 
fictitious entity under the law created specifically for the 
purpose of giving it certain protections and rights within the 
business world, within transactions. Never intended to give it 
speech rights.
    Now, over the course of time, obviously, we have had 
distinctions of commercial speech and so forth, but no reading 
that I know of of the Constitution suggested that we should 
inflate the speech rights of large, faceless corporations to 
the same level as hard-working average Americans. And that is 
precisely what this decision has done. In doing so, the Court 
has struck at the very heart of our democracy, a democracy in 
which corporations already have too much influence.
    I think Justice Stevens' words in dissent really summarize 
it. This is what he said: ``The Court's ruling threatens to 
undermine the integrity of elected institutions across the 
Nation. The path it has taken to reach its outcome will, I 
fear, do damage to this institution''--referring to the Supreme 
Court itself. And I strongly hope that the Senator and others 
will read those dissents and measure them against the far-
reaching, extra-legal decisionmaking that the majority has 
chosen to engage in.
    I have seen this system get more broken, Mr. Chairman, over 
the 25 years that I have in the United States Senate, and I 
have seen it as the nominee of my party. I think I understand 
as well as anybody the influence of money in American politics.
    In 1998, in our national elections, a cycle of election 
cost $1,618,000,000 and change. In the year 2004, when I ran, 
it cost $4,147,000,000. And just this past cycle, it cost 
$5,285,680,883.
    Mr. Chairman, we cannot simply become the prisoners, as we 
are today, of the perpetual campaign and of constant 
fundraising. The increased influence of money--big money--in 
our politics is robbing the average citizen of his or her voice 
in the setting of our Nation's agenda and the determining of 
what the Congress will take up or not take up. It distracts 
from the real business of the Congress, and it requires 
extraordinary time commitment from Members of Congress who are 
the prisoners of this perpetual campaign. Worse, it limits 
access and influence to those who can raise or contribute large 
sums of money.
    Nobody knows this better than Senator Feingold, whose name 
is synonymous with campaign finance reform. I appreciate his 
tireless work to rid our democracy of special interests. And I 
appreciate Senator Durbin's efforts to reinvigorate what is 
left of our public financing system.
    I have testified before this Committee on the influence of 
special interest money in elections in 1985, after I ran a PAC-
free Senate race for the U.S. Senate. I testified again in 1987 
and again in 1990. I joined then with Senator Boren and Senator 
Mitchell in authoring legislation which had public financing as 
a component in a voluntary system that met constitutional 
requirements. We passed it in the United States Senate. And 
President George Herbert Walker Bush vetoed it.
    I am back here again today because two decades later, we 
have yet to successfully attack the problem. And I am here to 
ask this Committee to take bold action before the system 
deteriorates even further as a result of the Supreme Court's 
dangerous decision.
    Before the Court stepped in, a corporation encouraged 
employees to contribute to a political action committee or to 
make individual donations to favorite candidates. Because of 
corporate power, that had some effect on donations. But now, 
thanks to the Supreme Court, Senator Bennett, the system has 
been tilted inexorably towards those who have the most money. 
Now a corporation can simply just budget corporate funds--they 
do not have to request anybody to contribute, just budget the 
funds as a matter of corporate policy to oppose a candidate and 
then actively campaign all the way up until the polls close at 
7:00 or 8:00 in the evening on election day.
    Our Republican colleagues often complain about activist 
Federal judges. But in this case, this Supreme Court went out 
of its way to unleash the power of corporations in our 
politics, way beyond what the decision needed as a matter of 
strict adherence to the law and to the issue before the Court. 
Even Ben Ginsberg, a long-time lawyer for Republican 
conservative causes, has warned of the consequences of this 
ruling. He says future campaigns are ``going to be a wild, wild 
West.''
    Indeed, now all CEOs have to do is turn over millions of 
corporate dollars to lobbyists to run media campaigns to help 
their friends and defeat their opponents in Congress. The sums 
of money that we are talking about will mean little to the 
corporations compared to what they might get in return--maybe a 
special interest bill or blocking a regulation. And the loser 
will be the American public and the public interest.
    Make no mistake about it. The Supreme Court's ruling also 
clears the way for the domestic subsidiaries--notwithstanding 
Justice Alito's shaking of the head and mouthing of the words 
``Not true,'' it does clear the way for domestic subsidiaries 
of a foreign corporation to spend unlimited amounts of money to 
influence our elections.
    Now, yes, foreign nationals and foreign-controlled 
corporations are barred from contributing directly to Federal 
and State elections. But nothing in the law bars foreign 
subsidiaries incorporated in the U.S. from doing so. And those 
subsidiaries answer not to the American people, but they answer 
to their corporate parents way off in some other country. That 
means in no uncertain way that a foreign corporation can indeed 
play in American elections, and clever people will not have a 
hard time covering their trail.
    We face two challenges: first, to mediate the impact of the 
Court's decision and stop the bleeding through immediate 
countermeasures; and, second, to think boldly about the best 
way to free our democracy from the dominance of big money.
    Mr. Chairman, the reform ideas already circulating are 
promising--mandating shareholder approval of spending since it 
is, in fact, the shareholders' money; prohibiting spending by 
domestic subsidiaries of foreign corporations and Government 
contractors; giving candidates prime-time access to the public 
airwaves at the lowest rates, which we have been fighting for 
years.
    We must do these things quickly to protect the integrity of 
the elections this fall. But we may also need to think bigger. 
I think we need a constitutional amendment to make it clear 
once and for all that corporations do not have the same free 
speech rights as individuals.
    Amending the Constitution is a serious endeavor. I know it 
is not this Committee's direct jurisdiction. And some of the 
sharpest minds in the country are working together right now to 
construct language for an amendment that would solve the 
problem and get to the heart of the issue. And I am ready to 
work with them and with the activists it will take to get an 
amendment ratified.
    Mr. Chairman, there is no bigger step to achieve big change 
than such an amendment. But the big issues of fairness and 
justice sometimes demand more immediate action. less.
    I think it is time for everyone who wants a Government that 
works for people to stop tinkering around the edges of a system 
that is broken beyond repair. Mr. Chairman, I know that 
ultimately a constitutional amendment will have to begin in the 
Judiciary Committee, but this Committee now has the opportunity 
under your leadership to pass many of the proposals in front of 
it now that can immediately help ensure that in the next 
election millions of our fellow citizens are not 
disenfranchised because of the concentration of money and 
power. I think that is an important responsibility, and I look 
forward to working with this Committee to try to help enact it.
    Chairman Schumer. Thank you, Senator Kerry, and we look 
forward to working with you. That is just what we intend to do.
    Okay. We are now going to call our witnesses, our remaining 
witnesses to the table. Would they please come forward?
    Let me just briefly introduce each of our witnesses and ask 
them to--their entire statements, every one of your entire 
statements will be read in the record--if you could, limit your 
testimony to 5 minutes so we will all have some time for 
questions.
    Mr. Steve Bullock is currently the Attorney General for the 
State of Montana. He was elected to this position November of 
2008, served in the Montana Justice Department for over a 
decade, and was executive assistant attorney general and acting 
chief deputy legislative director. From 2001 to 2004, he 
practiced law with the firm of Steptoe & Johnson while serving 
as an adjunct professor at GW University School of Law.
    Allison Hayward is an assistant professor of law at the 
George Mason University, and she served as chief of staff and 
counsel in the office of former FEC commissioner Bradley Smith. 
She has practiced election law in both Washington, D.C., and 
California.
    Mr. Edward Foley is the Robert M. Duncan/Jones Day 
Designated Professor in Law at Ohio State University's Moritz 
College of Law. He is the director of Election Law at Moritz, a 
publication that provides information and analysis of the 
changes in election law. He clerked for Justice Blackmun and 
Chief Judge Patricia Wald of the Court of Appeals. In 1999, he 
served as the State Solicitor in the office of the Ohio 
Attorney General's Office.
    Stephen Hoersting is vice president and co-founder of the 
Center for Competitive Politics. Previously he served as 
General Counsel to the National Republican Senatorial Committee 
under its Chairman, Senator George Allen, during the 2003-04 
election cycle. He was also counsel to FEC Commissioner Bradley 
A. Smith.
    Fred Wertheimer is the president and CEO of Democracy 21 
and the Democracy 21 Education Fund, which he founded in 1997. 
He was previously the president of Common Cause and has also 
served as a Fellow at the Shorenstein Center on the Press, 
Politics, and Public Policy at Harvard University and as the J. 
Skelly Wright Fellow and Visiting Lecturer at Yale Law School.
    Heather Gerken is the J. Skelly Wright Professor of Law--J. 
Skelly Wright is in the house--at Yale Law School, where she 
teaches an advanced course on election law. Previously she 
served as a clerk for Justice David Souter. She was also 
granted tenure as an assistant professor at Harvard Law School, 
where she won the Sacks-Freund Teaching Award.
    Ladies and gentlemen, your entire statements are now in the 
record. You may proceed, and we will just move from left to 
right, starting with the Attorney General.

  STATEMENT OF STEVE BULLOCK, ATTORNEY GENERAL, DEPARTMENT OF 
           JUSTICE, STATE OF MONTANA, HELENA, MONTANA

    Mr. Bullock. Chairman Schumer, Senator Bennett, members of 
the Committee, thank you for the invitation to appear today to 
address some of the States' interests in the matters that you 
are grappling with today.
    Last summer, Montana led more than half the States in 
asking the Court to address the narrow Federal issues presented 
by Citizens United. Instead the Court reached a broad decision 
that questions more than a century of law in Montana and across 
the country. Yet the case and reactions on both sides of the 
political aisle, have largely overlooked the decision's impact 
on the vast majority of elections in this country: those that 
are held at the State and the local levels.
    And there is historic meaning in a Montanan's appearance 
here today. One hundred and ten years ago, a predecessor of 
this Committee--the Senate Committee on Privileges and 
Elections--``expressed horror at the amount of money which had 
been poured into politics in Montana in elections from 1888 
onward.'' The setting was the investigation into the infamous 
bribery of the Montana Legislature by Senator William A. Clark, 
which led to its refusal to seat him.
    But the corruption of Montana politics was by no means 
limited to bribery. Senator Clark and his fellow ``Copper 
Kings'' dominated political debate in Montana and drowned out 
Montanans' own voices. This was corruption as it was understood 
since the framing of the Constitution: not mere theft or 
bribery, but harnessing government power to benefit a single 
corporate faction at the expense of the broader and more 
diverse interests represented by the people themselves. In an 
1884 election establishing Helena as the State capital, for 
example, Clark and his arch rival, Marcus Daly, combined to 
spend between $35 and $70 million in today's dollars to 
influence 52,000 voters. That is about $1,000 per vote.
    Mining money reached every campaign--legislators, judges, 
sheriffs, county commissioners, and assessors. And the result 
was best described by Clark in his own testimony here before 
the Senate Committee. He said many people have become so 
indifferent to voting there by reason of the large sums of 
money that have been expended in the State heretofore that you 
have to do a great deal of urging, and it takes a lot of men to 
do it, to go around and round them up and stir them up and get 
them out.
    Fed up, in 1912 our citizens through the initiative process 
passed several political reforms. One prohibited corporations 
that could most benefit from government action from ``pay[ing] 
or contribut[ing] in order to aid, promote or prevent the 
nomination or election of any person.'' The law represented 
nothing less than the voters taking back a government that 
belongs to them, and only to them.
    Montanans know their history as well as they know their 
political officials and their public officials. Over nearly a 
century, our limit on corporate campaign spending in candidate 
elections has served us well and has never been challenged. 
Corporations are represented in Montana campaigns, but on equal 
terms alongside other political committees, all of them 
speaking through voluntary associations of their money, ideas, 
and voices. It is a system Montanans continue to believe in.
    We did not want this fight in Montana, but the Citizens 
United decision will likely invite a challenge to the people's 
law of 1912. And we do not want to be set back a century. I am 
principally concerned about the ways State elections are 
especially vulnerable to corporate corruption and ask you keep 
these concerns in mind as you consider reforms.
    First, our campaigns are small compared to the corporations 
that would corrupt them. In 2008, the average Montana State 
senator won on $17,000 of spending; the average Senator in this 
body won spending $8.5 million. That is more than the combined 
amount raised by all 327 candidates running for State office in 
2008. With the floodgates opened to corporate spending, it will 
not take a Copper King to buy a $17,000 election.
    Second, the ``foreign corporations'' that can corrupt our 
elections are more likely to come from Delaware than offshore. 
While we can legislate to hold Montana corporations accountable 
to their shareholders, our State laws may not always reach 
businesses incorporated elsewhere. As you protect Federal 
elections from foreign influence, understand that federalism 
requires room for States to protect their elections from 
foreign influence too, whether that influence be international 
or interstate.
    Third, Montana's history shows the special damages arising 
from corporate corruption in judicial elections. Like the 
majority of States, we hold our judges accountable through 
elections. Supreme Court justices in Montana campaign on as 
little as $100,000, far less than the stakes in the cases they 
are asked to decide. As Caperton recognized, independent 
expenditures can have a ``significant and disproportionate 
influence'' in corrupting the administration of justice.
    Finally, I am encouraged by the Supreme Court's nearly 
unanimous affirmation of disclosure and disclaimer laws and 
hope more can be done. By amplifying disclosure and disclaimer 
requirements for corporations, voters can know the identity of 
the wizard behind the curtain. We may not be able to stop Acme, 
Inc. from using other people's money to campaign, but we can 
ensure voters know it is Acme speaking in their elections, not 
``Citizens for Motherhood and Apple Pie'' or some other front 
group. We can also protect the shareholders who are just trying 
to save for retirement and want nothing to do with some CEO's 
politics.
    In Montana we have ensured that the voices of our 
candidates and those of the natural persons that support and 
vote for them are not displaced by the treasuries of 
corporations. The Supreme Court has challenged all of us to 
find new ways to keep those voices heard. I look forward to 
working with our legislature and Congress in doing so.
    [The prepared statement of Mr. Bullock - Appendix B:]
    Chairman Schumer. Thank you, Attorney General Bullock.
    Professor Hayward.

     STATEMENT OF ALLISON HAYWARD, PROFESSOR, GEORGE MASON 
         UNIVERSITY SCHOOL OF LAW, ARLINGTON, VIRGINIA

    Ms. Hayward. Thank you, Mr. Chairman, members of the 
Committee, for having me here today. I would like to just 
amplify a couple of the points I have made in my submitted 
testimony, and I welcome any and all questions that you have.
    In my view, the holding in Citizens United fits soundly 
within the Supreme Court's jurisprudence on this question. The 
independent expenditure ban has been controversial from the 
beginning. Enacted in 1947 in part of a little debated 11th 
hour amendment to the Taft-Hartley Act, it has been a source of 
contention among prosecutors as well as scholars since that 
time.
    When the Court has squarely faced limits on expenditures, 
it has found them unconstitutional. Austin v. Michigan Chamber 
of Commerce from 1990 falls outside that trend. But if for no 
other reason, this Court ought to be applauded in Citizens 
United for bringing some coherence to the constitutional 
doctrine in this area.
    Going forward, it would seem appropriate--to me, anyhow--
that we should observe how corporations--and, by the way, labor 
organizations, which are equally beneficiaries, if you want to 
look at it that way, of Citizens United. We should see how they 
react. It might well be that corporations engage in spending 
that they would not have before, but I am not sure. I am not 
sure that the experience in States that allow corporate 
expenditures would suggest that corporations will go and 
participate in campaigns in ways differently than they do now.
    I can see corporations that have concerns about market 
goodwill maybe engaging in some soft focus voter education type 
messages that they might not have before out of fear of 
violating 441(b). But I am not really sure that is the kind of 
thing that is something that should trigger concern, at least 
at this point.
    It is the task of Congress, based on experience and sound 
logic, to see what happens and then regulate appropriately to 
preserve the integrity of this institution and its members. But 
until we see some evidence, I think it will be very difficult 
for any law enacted in Congress to pass the strict scrutiny 
examination that the Court is serious about applying to 
restrictions on political speech.
    Thank you.
    [The prepared statement of Ms. Hayward - Appendix C:]
    Chairman Schumer. Thank you, Professor Hayward.
    Professor Foley?

 STATEMENT OF EDWARD B. FOLEY, THE ROBERT M. DUNCAN/JONES DAY 
 DESIGNATED PROFESSOR IN LAW, MORITZ COLLEGE OF LAW, THE OHIO 
                STATE UNIVERSITY, COLUMBUS, OHIO

    Mr. Foley. Chairman Schumer, Senator Bennett, members of 
the Committee, thank you for giving me the honor of being here 
today.
    Citizens United was a case about a statute--a statute that 
prohibited any campaign spending by any corporation. Citizens 
United, therefore, tells us very little about different 
statutes that are narrowly targeted at specific categories of 
corporations or statutes that involve ceilings on the amount of 
campaign spending rather than an absolute ban.
    The concept of narrow tailoring is deeply embedded in First 
Amendment law, and Citizens United explicitly recognized it as 
the controlling standard. The Court called the statute there an 
``asymmetrical'' response to the problem of corruption. 
``Asymmetrical''--that was the Court's word, and it means the 
opposite of narrow tailoring. Therefore, after Citizens United, 
the question is what new statutes would pass the narrow 
tailoring test.
    The oral argument confirms this reading of the Court's 
opinion. During argument, Justice Scalia essentially invited 
Congress to come back to the Supreme Court with a different 
statute, a more narrowly tailored one. In other areas of 
constitutional law, oral argument can show that a new precedent 
is unlikely to be as far-reaching as might first appear. The 
well-known Lopez case, concerning Congress's Commerce Clause 
power, is an example, and Citizens United, in my judgment, fits 
this pattern, and its scope likely will be circumscribed in 
future cases just like Lopez was.
    Citizens United must be read in relation to other cases 
concerning the distinction between public sector and private 
sector corporations as well as, potentially, an intermediate 
category of corporations that are public-private hybrids. 
Citizens United itself recognized that entities engaged in 
``government functions'' do not have the First Amendment rights 
of purely private sector speakers. The Court's concern there 
was with the private sector as shown by its invocation of the 
famous Federalist Papers. Accordingly, Citizens United should 
not be seen as applicable to public sector corporations or even 
those that may fall into a middle public-private hybrid 
category.
    The 1995 Supreme Court case involving Amtrak called Lebron 
illustrates this point. That case was an 8-1 decision written 
by Justice Scalia, and it ruled that Amtrak is part of the 
Federal Government, even though the relevant statute said that 
Amtrak was a for-profit corporation that was not part of the 
Government. But in rejecting that statutory classification, the 
Supreme Court in Lebron adopted a functional, rather than 
formalistic, approach for identifying when a for-profit 
corporation properly belongs in the public rather than private 
sector. Given Lebron, Amtrak may not use its own money for 
express campaign ads, just like the Government itself may not 
do so.
    So the question is: What other for-profit corporations are 
like Amtrak? Or, in other words, using the functional approach 
of Lebron, what other corporations are sufficiently engaged in 
Government functions that Congress is entitled to say that 
they, too, should be ineligible for the private sector First 
Amendment right to engage in express campaign advocacy.
    Consider the banking industry. Obviously, the Federal 
Reserve itself cannot engage in express campaign speech. The 
same should be true for major banks that are deeply entwined 
with the Federal Reserve System or which received TARP funds. 
The essential role of these banks in our Nation's economy means 
that Congress should be able to say that they are public sector 
entities or at least public-private hybrids, to which the 
Citizens United ruling simply does not apply. They are not 
restaurants or clothing stores or other kinds of small business 
corporations, which is what Citizens United had in mind. On the 
contrary, these major banks that undergird our financial 
infrastructure are much closer to the Amtrak end of the 
spectrum.
    Thus, to wrap up, Citizens United, together with Lebron and 
other precedents, showed that Congress has considerable 
latitude to regulate the campaign spending of corporations that 
have a public sector character. Besides the banking industry, 
other examples may include public utilities, defense 
contractors, or corporations deemed ``too big to fail,'' like 
General Motors, whatever line of industry they may be in. 
Congress again has even greater latitude if it uses ceilings on 
large-scale expenditures, rather than absolute bans.
    Finally, the concern expressed in Citizens United for the 
private sector in the United States does not apply to foreign 
entities.
    Thank you.
    [The prepared statement of Mr. Foley - Appendix D:]
    Chairman Schumer. Thank you.
    Next we have Mr. Hoersting.

   STATEMENT OF STEPHEN M. HOERSTING, CENTER FOR COMPETITIVE 
                 POLITICS, ALEXANDRIA, VIRGINIA

    Mr. Hoersting. Thank you, Mr. Chairman, members of the 
Committee. Thank you for the opportunity to testify today on 
behalf of the Center for Competitive Politics. The Citizens 
United opinion is a landmark in First Amendment jurisprudence. 
Nonetheless, there is some consternation over the opinion that 
has resulted in mischaracterizations that need correcting.
    First, corporations are not mere creatures of the State 
that lack First Amendment rights. The Trustees of Dartmouth 
College case, cited erroneously for this proposition, discusses 
clear distinctions between private corporations established by 
individuals and municipal corporations established by 
governments. Indeed, Professor Foley rightly acknowledged this 
distinction, this private-public distinction, in his testimony 
moments ago.
    Second, foreign participation in our elections is a crime, 
whether done directly or indirectly. Even the giving or 
receiving of foreign advice is a crime.
    Now, domestic subsidiaries with a majority of foreign 
directors may establish PACs, so long as the decisions are 
delegated to U.S. nationals. PACs, after all, allow American 
employees to participate in politics no matter their employer. 
But domestic subsidiaries with a majority of foreign directors 
will not make corporate political expenditures going forward, 
even as they continue to allow their U.S. employees to fund a 
PAC. The reason is that doing so would be a crime under 
existing law.
    Therefore, any tightening of the existing ban can only 
prevent U.S. nationals from participating in U.S. elections 
with funds earned within the United States. This would violate 
the rights of U.S. nationals. Likewise, any belt-and-suspenders 
approach that merely restates existing law and achieves little 
or nothing would be a statute unworthy of U.S. Senators.
    Proposals to silence corporations with 5 percent foreign 
ownership are likely unconstitutional, as Professor Gerken 
acknowledges in her testimony, not least because it is 
burdensome for corporations to know just who owns 5 percent of 
shares at any particular point in time.
    Corporations with a majority of foreign shareholders are 
already covered by existing law, and legislation that would 
clarify the point must apply equally to non-profits with a 
majority of foreign membership and to labor unions.
    The Supreme Court just said in Citizens United that any 
association of Americans may speak about politics no matter 
their associational form. And it is possible that a majority of 
the D.C. Circuit in just a few weeks may permit multiple 
organizations to pool funds for these purposes. This would mean 
that the Children's Defense Fund may team with the teachers' 
unions, and that the right-to-life organizations may team with 
right-to-work groups and small businesses. This ultimately will 
be healthy for our democracy, and in any event, there is little 
you can do now but adapt to it.
    Some wish to slow the effects of the opinion with 
legislative measures. Professor Laurence Tribe wants all 
corporate political ads to feature the name of the 
corporation's CEO and the percentage of the treasury funds 
spent on the ad. But what benefit would that provide the 
public? The apparent goal is simply to deter speech.
    Others propose shareholder votes for corporate 
expenditures, but these raise First Amendment and federalism 
concerns and may suppress corporate speech. Instead of delaying 
the inevitable, Congress could mitigate these concerns by 
freeing the political parties of the few remaining McCain-
Feingold provisions that have not been struck down by the 
courts.
    Most of the organizations I am aware of, after all, would 
rather give some of their resources to the political party 
committees than go it alone under the Citizens United opinion. 
And you should permit them to do so. Lift some restrictions or 
I fear you will face second-tier budgets that garner second-
tier operatives, resulting in second-tier campaigns.
    If this trend persists, it is possible even that the people 
may go elsewhere, not because they disagree with your message, 
but because current law makes it comparatively impossible to 
affiliate with anything that has Democrat or Republican in the 
title and almost effortless to engage now with outside 
organizations.
    Mr. Wertheimer, respectfully, would exacerbate your problem 
by tightening existing restrictions on coordination, keeping 
flat the amounts the party committees can accept, even as he 
recognizes that outside organizations will likely spend 
relatively more resources with this opinion.
    My overall point to you is this: If it is really your 
position that accepting the support of your political allies 
somehow corrupts you, well, then, the Supreme Court will always 
take you at your word. What the Court will no longer take, 
correctly and for the foreseeable future, is any variation of 
the argument that outside groups can be silenced because they 
speak more effectively than some might prefer.
    Your choice, then, is to awaken to this new reality or not 
to do so. I, for one hope that you do.
    Thank you.
    [The prepared statement of Mr. Hoersting - Appendix E:]
    Chairman Schumer. Before we move on to Mr. Wertheimer, 
Senator Udall has to leave by 11:00 and had asked to make a 
short statement.

               OPENING STATEMENT OF SENATOR UDALL

    Senator Udall. Thank you, Chairman Schumer, and I need to 
preside at 11:00, so I appreciate you doing that. And I would 
like to thank you for holding this hearing.
    Campaign finance reform is an issue you and I both care 
about deeply, and I know we share strong concerns about 
financing elections in the wake of the recent Supreme Court 
decision. Fifty years ago, when my father, Stewart Udall, and 
my uncle, Mo, were in office, money had a minimal impact on the 
electoral and political system. It was about connecting with 
people and about the marketplace of ideas. Right now, it is 
just as much about the biggest checkbooks, if not more so, than 
it is about the best ideas.
    Unfortunately, we are about to see a lot more big 
checkbooks in the election process. Last month's Supreme Court 
decision in Citizens United v. FEC was a victory for special 
interests at the expense of the average American. We have seen 
firsthand the impact special interests like big oil and big 
banks and health insurance companies have had on the 
legislative process. Now with this decision, already powerful 
corporations and unions will be able to further open their bank 
accounts, further drowning out the voices of everyday Americans 
in the political process.
    Members of both chambers and the administration are working 
on legislation to address the Citizens United decision. I 
commend their efforts, but I believe that a comprehensive 
overhaul of the campaign finance system is necessary in order 
to restore public faith in our elections. The Supreme Court has 
shown its willingness to rule broadly and ignore longstanding 
precedent when it is reviewing the constitutionality of 
campaign finance laws. The best long-term solution is a 
constitutional amendment that would prevent the Court from 
overturning sensible campaign finance regulations. I would 
welcome the opportunity to join my colleagues in introducing 
such an amendment.
    While I believe that a constitutional amendment is the 
ideal solution, I also think that comprehensive reform 
legislation is a step in the right direction. As a Member in 
the House for 10 years, I joined Representative Dave Obey as an 
original cosponsor of the Let the People Decide Clean Campaign 
Act, a bill that would fundamentally change how House elections 
are conducted. Mr. Obey reintroduced his bill in this Congress, 
and I intend to introduce a companion bill in the Senate in the 
coming weeks.
    The act does not attempt to fine-tune the existing 
congressional campaign finance system or tweak the edges; 
rather, it makes fundamental, wholesale changes to fundraising 
by candidates, regulations of outside groups, and the role of 
political parties. It contains a finding that America's faith 
in the election system has been fundamentally corrupted by big 
money from outside interest groups. It establishes a system of 
voluntary contributions to provide public financing of 
campaigns for Senate candidates in general elections. It 
provides more funds than the current system for the vast 
majority of challengers to mount their campaigns. It empowers 
voters with the knowledge that their vote affects the outcome 
of the current election and also affects the amount of funds 
distributed to nominees in future elections.
    It bans all independent expenditures so that only the 
candidate is responsible for his or her message. It provides 
for expedited consideration of a constitutional amendment 
allowing these changes if the Supreme Court rejects the plan. 
It provides a process by which third-party candidates can also 
participate in the system.
    Money can have a corrosive effect on the political process. 
We have seen evidence of that in campaigns at all levels of 
Government. We have long needed substantive campaign finance 
reform, and it is my hope that the high Court's disappointing 
decision will provide the push we need to put elections back in 
the hands of average Americans and not the special interests 
who can use their unlimited bank accounts to railroad the 
process to their preferred conclusion.
    With that, Mr. Chairman, I would yield back, and I thank 
you very much for the opportunity to give my statement before 
heading out to preside.
    Chairman Schumer. Thank you. Thank you for your excellent 
statement.
    Senator Udall. I look forward to working with you very 
closely.
    Chairman Schumer. Thank you.
    Mr. Wertheimer?

    STATEMENT OF FRED WERTHEIMER, PRESIDENT, DEMOCRACY 21, 
                        WASHINGTON, D.C.

    Mr. Wertheimer. Thank you, Mr. Chairman, Senator Bennett, 
and members of the Committee, for the opportunity to testify.
    The 5-4 Supreme Court decision in Citizens United is the 
most radical and destructive campaign finance decision in the 
history of the Court. The decision threw out a century-old 
national policy to prevent corporate wealth from being used in 
Federal elections, and it threw out similar policies in many 
States.
    The decision also threw out two decades of precedents 
upholding that national policy without any relevant changed 
circumstances from the time the precedents were adopted, except 
for the composition of the Court. As Justice Stevens pointed 
out in his dissent, or as I think of it, a future majority 
opinion-in-waiting, the only thing that matters here is the 
make-up of the Court. When this Court make-up changes again 
sometime in the future, I expect the Citizens United decision 
to be thrown out.
    The decision represents breathtaking judicial activism by 
five Justices who are commonly considered as conservative 
Justices. The decision also represents an enormous transfer of 
power in our country from citizens to corporations. It opens 
the door to the use of immense aggregate wealth of corporations 
to directly participate in campaigns and thereby to buy 
influence over Government decisions.
    Under this decision, insurance companies, banks, drug 
companies, energy companies and the like, and their trade 
associations, each will be free to run multimillion dollar 
campaigns to elect or defeat Federal candidates, depending on 
whether the officeholders voted right or wrong on issues of 
importance to those groups.
    Now, this also opens the door to labor unions to undertake 
those same efforts, but it is quite clear that the resources of 
labor unions are dwarfed by the resources of corporations.
    Prior to the decision, former Senator Hagel, a Republican 
from Nebraska, pointed out the consequences if this Court 
overturned the ban. Senator Hagel said in an interview with a 
Washington Post reporter that if restrictions on corporate 
money were lifted, ``the lobbyists and operators would run 
wild.'' Senator Hagel also said that reversing the law would 
magnify corporate power in society and ``be an astounding blow 
against good government, responsible government,'' and ``would 
debase the system, so we would get to the point where we 
couldn't govern ourselves.''
    We believe it is essential for Congress to move swiftly to 
enact legislation effective for the 2010 congressional 
elections that can mitigate the damage done by this decision. 
We have submitted a list of proposals that we would hope 
Congress would consider. I would like to briefly address two of 
them.
    Congress should adopt broad new disclosures requirements to 
cover campaign-related expenditures by corporations and labor 
unions--disclosure to the shareholders, disclosure to the 
public, disclosure to the members of labor unions. While other 
campaign finance reforms have resulted in strong differences of 
opinion, there has always been a strong bipartisan consensus 
around the importance of disclosure laws. This has not been a 
partisan issue in the past, and it should not be a partisan 
issue now.
    The Supreme Court affirming by 8-1 the disclosure 
provisions involved in the Citizens United case said, ``With 
the advent of the Internet, prompt disclosure of expenditures 
can provide corporations and citizens with the information 
needed to hold corporations and elected officials accountable 
for their positions and supporters.''
    Now, we also believe that Congress should fix the lowest 
unit rate and make it available as soon as possible. The Senate 
in 2001 voted for such a provision by a large bipartisan 
majority, 69-31. Of the 14 members of this Committee who were 
in the Senate at the time of that vote, 11 voted for the 
provision, including the Chairman and Ranking Member of this 
Committee, Senate Republican Leader McConnell, and Assistant 
Democratic Majority Leader Durbin, and Senator Durbin has taken 
the lead in legislation in this area. We believe it was 
bipartisan then, it should be bipartisan now, simply to fix an 
existing lowest unit rate provision that provides the ability 
to Senators and Representatives now to get the lowest unit 
rate.
    We urge you to move swiftly to enact legislation that can 
promptly address the problems created by the decision.
    [The prepared statement of Mr. Wertheimer - Appendix F:]
    Chairman Schumer. Thank you.
    Professor Gerken.

 STATEMENT OF HEATHER K. GERKEN, J. SKELLY WRIGHT PROFESSOR OF 
          LAW, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT

    Ms. Gerken. Senator Schumer, Senator Bennett, and 
distinguished members of this Committee, thank you for letting 
me testify before you today.
    The witnesses thus far have presented a starkly different 
portrayal of Citizens United and its aftermath, but I want to 
talk about something that I think is quite crucial and has 
nothing to do with whose ox is gored by this decision, and that 
is the stark fact that the Supreme Court overruled its own 
precedent in utter disregard of its criteria for departing from 
the grand principle of stare decisis. It did so simply because 
it thought the original decision was badly reasoned and had 
prompted dissent within the Court.
    Whatever you think about campaign finance, that is a 
remarkable and dismaying fact because if badly reasoned 
decisions accompanied by dissents are hereby subject to 
reversal, the Court is going to have an awful lot of work to 
do.
    All of the efforts of some of the prior witnesses to show 
that Austin was an outlier or that bans on corporate 
expenditures were 50 years old rather than 100 years old--all 
of that seems to me quite beside the point. Austin was an 
outlier among the Court's precedent. But the Supreme Court does 
not engage in a tit-for-tat approach to its own precedent. Five 
votes is not a license for vengeance. Five votes is also not a 
license to do anything that you want to do.
    As the Court recognized in Casey, we trust the Court with 
the precious task of interpreting the Constitution because we 
expect the Court to accord the same respect to its prior 
decisions that we accord to its present ones. The fact that a 
decision was poorly reasoned is not enough to overturn 
precedent, at least prior to Citizens United.
    The fact that a decision prompted controversy is not enough 
to overturn it, at least prior to Citizens United. The Court 
has always required a good deal more before reversing itself, 
and with good reason. No matter what we think of this decision, 
we should be dismayed by the Court's disregard of its own 
precedent.
    Now, while I wish that the Court had either adhered to its 
own precedent or at least offered a more compelling reason for 
overturning Austin, overturn Austin it did. Senator Feingold is 
correct that no legislation can fully respond to this decision, 
but several paths, nonetheless, remain open and let me discuss 
them quickly.
    First, Congress may strengthen existing disclosure and 
disclaimer rules. There is only one issue on which the Court 
achieved near unanimity in Citizens United, and that was that 
transparency matters. With respect to Mr. Hoersting, it seems 
to me that he has mischaracterized the Court's opinion. The 
Court told us that democratic debate works best when voters 
know the source of the political messages they receive, and it 
said that Congress may take the steps necessary to provide that 
information. The Court told us that disclaimers and disclosure 
promote First Amendment values rather than undermine them.
    Now, disclosure and disclaimer requirements will fail if 
they are easy to evade. Corporations will be tempted to hide 
behind vaguely named shell organizations to shield their 
identity. They can also evade disclosure rules simply by the 
way they earmark donations. But there are existing State and 
Federal precedents that suggest good ways to deal with these 
questions. In my written testimony, I mentioned, for instance, 
the Washington State approach which requires expenditures to 
list the name of the top donors who funded the ad so that 
people know the source of the speech they are listening to.
    In my view, disclaimer and disclosure rules stand on firm 
constitutional footing. Congress' power here is well 
established, and the Court merely reinforced it.
    Second, Congress may take steps to protect shareholders 
from wasteful spending. Indeed, one of the main reasons that 
the Court enthusiastically endorsed disclosure rules was to 
protect corporate shareholders. While I leave the details of 
such provisions to experts in corporate law, I should urge 
Congress to keep in mind here that the problem here is not 
American democracy, but shareholder democracy. Shareholder 
elections are connected to Federal elections in this one 
respect: Citizens United vindicated the right of corporations 
to speak, and shareholders are the corporation.
    And, again, if I just may correct what I think is a 
misstatement of my position, I made no comment on the 
constitutionality of the 5-percent rule. To the contrary, 
because I am not an expert in corporate law--and I am under the 
impression that none of the witnesses here is either--I leave 
the decision about what is the right percentage here to experts 
in corporate law. But I will just note that if you start to 
look at State law cognates and Federal cognates, the numbers 
range from 10 percent to 20 percent to 25 percent. So I do 
think that there is room here for Congress to do something with 
regard to shareholder protection.
    Finally, I believe that Congress has the power to protect 
U.S. elections from the influence of foreign nationals. Again, 
there are many rules for doing this, but I believe that they 
stand on firm constitutional footing. Although there is no 
direct Court precedent on this issue, the distinction between 
citizens and non-citizens in elections is well established in 
constitutional law.
    Thank you very much.
    [The prepared statement of Ms. Gerken - Appendix G:]
    Chairman Schumer. Well, thank you. I want to thank our 
panel for their testimony, diverse and thought-provoking.
    As you know, we are looking seriously at introducing 
legislation in the not-too-distant future. I am working with 
Congressman Van Hollen on a House side bill. So my questions 
are aimed in that regard rather than to have discussion and 
argument, which, of course, we could easily have and it would 
be fun.
    First, I would like to ask Professor Gerken and maybe Mr. 
Wertheimer about this: Since the decision allows corporate 
spending to be much more freely done, those corporate dollars 
can end up being given to 501(c)(4)s, (c)(5)s, and (c)(6)s, so 
changing their nature as well. Should we consider whatever type 
of legislation that we want to address for direct corporate 
spending to apply to these units as well--disclosure, 
disclaimer, lowest unit rule? You could go through all of them. 
Professor Gerken, what do you think, or Mr. Wertheimer, whoever 
wants to go first.
    Mr. Wertheimer. Absolutely. I think it is essential when 
you get to the disclosure questions to ensure that the 
disclosures cover organizations who either are making direct 
corporate expenditures or are indirectly making corporate 
expenditures. Many (c)(4)s are corporations already.
    But if you are going to make sure that the public knows 
what is happening with who is responsible for making 
expenditures, you have to carefully be able to trace the money 
and have it all out on the table. I mean, the Court was as 
clear as could be here that disclosure and prompt disclosure is 
an appropriate way to deal with this situation. The trick is to 
make sure you get all the information, and I think it is 
absolutely essential to do that.
    Chairman Schumer. Do you agree, Professor Gerken?
    Ms. Gerken. Yes, I agree. There has been a large debate 
about what exactly will be the effect of the Supreme Court's 
decision, and I think much will depend on what you do on this 
front. That is, if corporations have the ability to fund 
501(c)(4)s and (c)(6)s that are named Americans for America, 
you could imagine they would be quite tempted to spend that 
money.
    On the other hand, if corporations knew that that money is 
simply going to be identified as associated with them, I think 
that the power of corporate spending is much reduced. And here 
I should note that there are two things that you need to worry 
about----
    Chairman Schumer. Can I ask you, the power or the 
likelihood?
    Ms. Gerken. The likelihood, yes.
    Chairman Schumer. Okay.
    Ms. Gerken. Which I do think, though, translates, for the 
reasons that Senator Feingold articulated, into power.
    Chairman Schumer. Right.
    Ms. Gerken. There are two things that you need to keep 
track of in my view. The first is simply identifying with a 
disclaimer on the ad who it is that is really behind the 
speech. And the second is to make sure that corporations, by 
giving what are called non-specifically designated donations to 
organizations like the chambers of commerce - which do both 
political work and non-political work that by just failing to 
earmark it, they can get around having it designated as a 
political contribution under a current FEC interpretation. 
That, it seems to me, must be corrected for this to work.
    Chairman Schumer. Okay. Thank you.
    Lowest unit rate, which was mentioned, I think, by a few, 
does anyone here think if we were to legislate lowest unit 
rate, for instance, after a certain amount of this corporate 
money comes in, the candidate against which this is used gets 
lowest unit rate. Does anyone doubt the--whether you agree with 
it or disagree with it, doubt the constitutionality of that? Go 
ahead. I take it the only person then who doubts it is Ms. 
Hayward because she is the only one who raised her hand. Go 
ahead briefly.
    Ms. Hayward. Well, I would be concerned with the Davis v. 
FEC precedent, that that could be seen as something like in 
Davis where speech was being punished in a way or burdened in a 
way by giving the person for whom the speech was, you know, 
directed a benefit. Then, you know, the independent expenditure 
maker would be saying, well, look, if I make an independent 
expenditure, this person who I do not like gets a benefit.
    Chairman Schumer. Right.
    Ms. Hayward. That is more or less the logic of Davis. I am 
not saying that I have a crystal ball, but I think that would 
be the thing that you would want to look at.
    Mr. Wertheimer. Well, if I could comment on that.
    Chairman Schumer. Go ahead, Fred.
    Mr. Wertheimer. I do not know that you have to have a 
dollar figure to trigger this. You already have a lowest unit 
rate provision that has been provided to Federal candidates for 
many years.
    Chairman Schumer. Right.
    Mr. Wertheimer. It just does not work. There have been 
efforts to fix it in the past. I think it now becomes essential 
to fix it, and I do not know that you need a dollar figure. 
And, therefore, you would be providing all candidates the same 
benefit, and I do not think the Davis case would come into 
play.
    Chairman Schumer. Well, it might be triggered for other 
types of spending, party spending or other types of things.
    Professor Gerken?
    Ms. Gerken. Yes, I agree that if you extend it to all 
candidates and you are careful about its functioning, you can 
avoid Davis.
    Chairman Schumer. And what about letting party committees 
or others get the lowest unit rate should this certain level of 
corporate money come in against a candidate?
    Ms. Gerken. It is always difficult to predict the Supreme 
Court's decisions on this front, but there is a sound 
constitutional argument that can be made.
    Chairman Schumer. Yes, okay. Let me ask you--I am sorry.
    Mr. Hoersting. Mr. Chairman?
    Chairman Schumer. Please.
    Mr. Hoersting. May I make a comment about disclosure for 
(c)(4), (c)(5), and (c)(6) giving?
    Chairman Schumer. Yes.
    Mr. Hoersting. Express advocacy expenditures will be 
disclosed under existing law, and they will be attributed to 
the people who actually further that expenditure, the same with 
electioneering communications, as the Court reaffirmed in 
Citizens United. But the compelled disclosure of donations for 
issue advocacy, there may be a constitutional problem with 
compelling the disclosure of those donations.
    Chairman Schumer. Does anyone agree with Mr. Hoersting on 
that? I thought the Court was pretty clear on that issue.
    Mr. Wertheimer. Well, I think the Court explicitly said 
that disclosure for express advocacy, the functional equivalent 
of express advocacy, and electioneering communications was 
appropriate. And there are some disclosures now, but they are 
not comprehensive, and they certainly do not capture where the 
money is coming from, so they are not adequate.
    Chairman Schumer. Right. A final question to Mr. Bullock, 
Attorney General Bullock. Do you think disclosure and 
disclaimer would be sufficient--not sufficient, but would make 
a--let me put it a different way--would have a significant 
impact on limiting what you fear would happen as a result of 
this decision in your State of Montana? In other words, if 
those who sought to spend lots of corporate money in Montana 
were either forced to disclose or even disclaim on an ad, would 
that have a significant effect? Do you think that is enough in 
the legislation? Would we have to go further? Give me just your 
feel for that? Because some are saying we should limit our 
legislation to disclaimer and disclosure; others are saying we 
should go further with some of the things that have been 
outlined here.
    Mr. Bullock. Yes, Chairman Schumer, twofold, one of which 
is I think disclosure and disclaimer is critical for our State 
elections. It needs to go beyond that which we have currently, 
though, because I think that there is substantial masking even 
under the extant system. And people do not really know who is 
behind these ads.
    Second of which, I do not believe that that is from a 
State's perspective sufficient. We need as much sunshine, as 
much openness as possible, but there needs to be more in order 
for us to address the rest of the implications of this decision 
on Montana and other States.
    Chairman Schumer. Thank you, Attorney General.
    Senator Bennett.
    Senator Bennett. Thank you very much, Mr. Chairman, and 
thank you all for your testimony. This was an interesting panel 
and an interesting balance of reactions and comments on the 
decision.
    I come at this issue with a little bit different aspect 
because I am not a lawyer, but I have been a candidate and I 
have managed campaigns. And the first general comment I would 
want to make is that he who has the most money does not always 
win. Indeed, many times he who has the most money spends it 
stupidly and ends up helping the other side. Just because 
someone has the right to speak does not mean that he or she 
will speak intelligently or effectively. And not to touch 
anybody in a way that might be wounding or create problems, the 
election in New Jersey for Governor was not decided on the 
basis of who had the most money or who ran the most ads.
    I realize I am a Neanderthal on this view, but I still 
believe that in an election the candidate matters. And when you 
have a good candidate, yes, you need money and all the rest of 
it, but you are more likely to prevail than if you had a bad 
candidate.
    And I have spent enough time in the corporate world to know 
that corporations spend money on ads that do not work. Trying 
to sell their product, they produce ads that are stupid. Can 
anybody say ``New Coke''? Any demonstration of a corporation 
that spent a whole lot of money in a campaign that turned out 
to be really, really dumb demonstrates that many of the fears 
we are hearing, that the fact that corporations can now do what 
corporations connected with a media outlet do, is not, I do not 
think, the end of the world.
    I am reminded of the comments that occurred some years ago, 
you may remember, when people on the right said to all of their 
followers, ``Buy CBS stock so you can become Dan Rather's boss 
and tell him what has to happen.'' And, of course, CBS is a 
corporation. The New York Times is a corporation. The 
Washington Post is a corporation. Fox News is a corporation. 
CNN is a corporation. And they all have the right under the 
Constitution to say in their editorial pages or in the people 
that they put on the air vote for or against this candidate, 
and they do it every day--not every day. Every election.
    We had a newspaper change hands in Salt Lake, and the new 
owner--the previous position of the paper was we do not endorse 
candidates, we just do editorials. And the new owner said we do 
endorse candidates, and he said he was going to--as a result of 
that, the paper was now going to have huge influence that it 
did not have before. And the sudden mention of candidates' 
names did not change the power of the paper to influence things 
that it had previously.
    Mr. Wertheimer, do you support disclosure for your 
supporters?
    Mr. Wertheimer. I support whatever disclosure this Congress 
thinks should apply across the board.
    Senator Bennett. All right.
    Mr. Wertheimer. I think we have always had separate rules 
for campaigns because they deal with elected officials who are 
raising and spending the taxpayer's money so that the public 
has a direct stake in knowing who your backers are. But if this 
Congress wants to adopt across-the-board rules for 501(c) 
organizations, we will comply with them.
    Senator Bennett. I did not ask if you would comply, because 
I am sure you will comply. Would you support such a----
    Mr. Wertheimer. Well, it depends what the rules are.
    Senator Bennett. Exactly, and I think we need to look at 
what the rules are elsewhere with these other items that you 
are talking about.
    References were made to PACs, which are a terrible thing, 
at least in some people's comment. I remember Watergate and 
PACs were the reform. PACs were the way we were going to get 
away from some kind of corporate challenge and put money in the 
hands of people.
    Do any of you feel that PACs are an improper way of 
financing elections?
    Mr. Wertheimer. If I could comment, having worked on that 
legislation, I disagree that PACs were the reform. The effort 
back then was to enact public financing of Presidential and 
congressional elections. The Senate passed legislation 
supporting Presidential and Senate public financing, and the 
House failed to pass it by 41 votes, and we were off to 
history. PACs were not a reform. They were codified because 
people were concerned that the Justice Department was going to 
take action against unions and corporations, but particularly 
unions, for having PACs as a violation of the corporate ban and 
labor union ban. So I very much disagree that they were viewed 
as the solution during the Watergate period.
    Senator Bennett. Your memory and mine are different on that 
issue.
    Thank you, Mr. Chairman.
    Chairman Schumer. Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I am one that believes the decision is really catastrophic, 
and it is catastrophic, I think, on the practical impact of 
day-to-day life of an elected official.
    I think Mr. Wertheimer hit it on page 6, and I want to 
quote him: ``It would not take many examples of elections where 
multimillion corporate expenditures defeat a Member of 
Congress, before all Members quickly learn the lesson: vote 
against the corporate interest at stake in a piece of 
legislation and run the risk of being hit with a multimillion 
dollar corporate ad campaign to defeat you.''
    Let me give you an example. Right now, committees of this 
House are looking at financial regulation. Should hedge funds 
be regulated? A huge financial activity out there with no 
regulation. Credit default swaps, position limits, clearing--
all of these things will affect the financial community in a 
dramatic way. Go against them, and you provide an opportunity 
for wealthy investment banking firms to pool funds, put them 
into an independent expenditure campaign against you. And the 
chilling effect on courage, I think, over time will be 
enormous.
    You can use this on guns, on abortion, on offshore oil 
drilling, on virtually any issue where the corporate interest 
is diametrically opposed; corporate or labor union or any other 
organization's interest is diametrically opposed to what the 
member stands up and advocates.
    And one of the reasons why we have 6-year terms is so that 
we can be courageous, so we can say what we believe is in the 
best interest of all of the people of this great country.
    Mr. Chairman, I salute you, and the Ranking Member, with 
whom I have worked for a period of time. I hope we have a bill 
that has broad new disclosure requirements, approval by 
stockholders, has a CEO standing up on the disclaimer. If a 
company is going to put $5 million into an attack ad, the CEO 
ought to stand up and say, ``I, the CEO of XYZ company, approve 
this ad.'' A ban on Federal contractors making contributions, 
and a ban on foreign interest contributions.
    I see this as extraordinarily serious on courage in the 
bodies of Congress. So I just want to say that I think Mr. 
Wertheimer has it right. I think we need to take action. And, 
incidentally, the United Kingdom took some action. I would just 
like to submit their bill for the record so that the Committee 
might have it.
    Chairman Schumer. Without objection.
    [The bill - Appendix H:]
    Senator Feinstein. And I have no questions. I thank you.
    Chairman Schumer. Senator Durbin.
    Senator Durbin. Thank you, Mr. Chairman, and I salute your 
efforts on this bill. I think disclosure and disclaimers are a 
good idea. We tried this, though, when we said that candidates 
had to stand up in the ads and say, ``My name is Dick Durbin, 
and I approved the contents of this ad.'' And we thought that 
that might lead to a more genteel and rational debate when it 
came to the media. The jury is still out. People are still 
skeptical.
    Historically, Attorney General Bullock, your reference to 
Senator William Clark of your State is one that I identify with 
because I am reading a book called ``The Big Burn'' by Tim 
Egan. It talks about the great forest fire of 1910 and William 
Clark's efforts to stop the creation of the Forest Service and 
Federal forest lands. And he really did throw the money around 
very effectively, and your State passed some reforms as a 
result of it.
    I think back also, John Roberts when he came before the 
Senate Judiciary Committee told us he was just going to be an 
umpire, just going to call balls and strikes. Well, this 
Citizens United decision makes it clear he is an umpire on 
steroids because what they have done is overturn 100 years of 
precedent, at least 50, and basically allow corporations to 
have their will when it comes to political discourse, to give 
them First Amendment rights to come out for candidates.
    And I agree with Senator Feinstein, it will have a big 
impact on campaigns. It will have a big impact on Congress 
because it really will increase the pressure which can be put 
on Members of Congress for critical votes. There is pressure 
already, but the pressure will be increased dramatically 
knowing that the corporation you say no to, trying to fight off 
a new tax, is the same corporation that can now spend $1 
million to beat you.
    And, Senator Bennett, I agree with you. The wealthiest 
candidates do not always win, but we all scramble for our power 
hours and our dialing for dollars and our trips all around the 
United States when we run, because we know if you do not have 
money to get your message out, you are going to lose. No matter 
how good you are, there is a limit to how far it will take you.
    I do have a personal interest in this because several years 
ago I introduced a bill on public financing. I really think 
that that is what we have to do. We have to break away from 
this model that we have for political campaigns which has 
created so much cynicism and so much distrust among the 
American voters. This Fair Elections Now bill that I have 
introduced is a voluntary bill, funded by a tax on the 
corporations that do business with the Federal Government, and 
basically says you cannot raise any contribution larger than a 
hundred bucks. If you raise enough of them, you qualify, you 
will get matching funds. You do not have to spend your life at 
the other end of a telephone hearing secretaries make excuses 
about why the boss cannot take another call from you.
    I think that that would be a dramatic change, and I 
thought, I really thought, honestly, Mr. Wertheimer, that it 
would not go anywhere unless there was a major scandal. That is 
usually what leads to a reform. But I think this case may be 
the trigger. This case may be the catalyst. We say now we are 
going to give voters an alternative, they can choose between a 
candidate who opts for public financing on a voluntary basis 
with limited contributions of $100 or the other guys. And the 
other guys are going to be wallowing in money, and I do not 
think that they will be able to explain it away very easily 
when the contrast is made. So I think there is a possibility 
here that we can renew this debate.
    Some of my critics even in the Senate say, you know, the 
American people are interested in a lot of issues. They are 
interested in jobs and the economy and health care and so 
forth. They are not that interested in this issue. This is kind 
of an intramural issue as far as they are concerned. They think 
we are all going to be crooked and take too much money no 
matter what we do. So they are pretty skeptical when you talk 
about reform.
    But I really think they show that they care when given a 
chance. They did it in Arizona when they had a chance for a 
statewide referendum on whether or not they would go to public 
financing. They have done it in other States as well.
    I would like to just ask Attorney General Bullock and 
anyone who would like to comment, What do you think of the idea 
of public financing of campaigns?
    Mr. Bullock. Senator Durbin, I have not looked at the bill 
draft. Conceptually, I have always believed that there is some 
merit in public financing in campaigns. When I look to the 
Montana experience, the maximum I could raise by contribution 
limit was $310. I had to make a lot of calls.
    In a lot of respects, for States like mine there is still 
going to be the concern of the independent expenditures. And in 
State races, the independent expenditures can far dominate what 
I can raise. I agree with Senator Bennett that the candidate 
matters, but I have 147,000 square miles that I have to travel 
in Montana. But unless you could somehow make some system of 
financing sufficient to address or counter address the 
independent expenditures that will still flow into the 
election, I am not sure it will ever be sufficient to actually 
make it so that those good candidates can be heard.
    Mr. Wertheimer. Senator Durbin, I testified in this 
Committee room for the first time in 1973 urging then-Chairman 
Howard Cannon and the rest of the Committee to pass 
congressional public financing, and I have been working for it 
ever since.
    There was a young freshman Senator who had just gotten here 
who came up to testify and pleaded with his colleagues to pass 
congressional public financing. His name was Joe Biden.
    So I think it is the only fundamental solution to the 
problems here, fixing the Presidential public financing system, 
creating a system for Congress.
    I do think we have got to respond as quickly as we can 
right now in whatever ways are appropriate to this monumental 
decision. And I agree with Professor Gerken here. If the only 
standard for the Supreme Court is when the make-up of the Court 
changes, we will change decisions we do not agree with. I truly 
can see Citizens United being overturned.
    But in the end, we have to have public financing of 
elections if we are going to give citizens their opportunity to 
have a voice that is not drowned out by large amounts of 
private money.
    Mr. Hoersting. Senator Durbin----
    Chairman Schumer. Thank you. Do you want to say something, 
Mr. Hoersting?
    Mr. Hoersting. Yes, please, if I could.
    Chairman Schumer. Please.
    Mr. Hoersting. As the Attorney General mentioned, public 
financing will not do anything to dampen the relative spending 
of outside organizations as protected by this opinion. And 
there is one other point I would like to make about the Fair 
Elections Now Act. I would respectfully suggest that the 
Committee fully understand the decertification provisions in 
the bill. We have heard lots of talk about lobbyists or large 
interests going to a Congressman's office and saying, ``I hope 
you are with me in the coming election cycle.'' But in Arizona, 
the clean elections commissions go so far so to nullify 
election results; they have the ability to invalidate elections 
after the fact based on whether they thought the provisions 
were followed or not.
    While the FENA proposals do not have election-nullification 
provisions, I worry that if the decertification provisions are 
not carefully studied, you may owe your elections and your 
financing not so much to constituents who may or may not 
support you, but to the administrative grace of a fair 
elections commissioner.
    Chairman Schumer. Thank you.
    Senator Durbin. Mr. Chairman, if I could just respond.
    Chairman Schumer. Please.
    Senator Durbin. That is not in my bill. Are you saying it 
is?
    Mr. Hoersting. Yes, Senator, my understanding of FENA is 
that it has decertification provisions based on inability to 
comply.
    Senator Durbin. No, it does not.
    Mr. Hoersting. I will look into that, and I apologize if I 
have that incorrect.
    Chairman Schumer. Okay. We are going to go to a next round 
for anyone who wants to. I have two more questions aimed at 
crafting the best piece of legislation that we can.
    The first, I would address to Professor Gerken. This is on 
foreign-influenced corporations, which we touched on. The Court 
discussed the prohibition on foreign nationals financing 
American elections, and we all know that there is already a 
provision that prevents foreign citizens and foreign 
corporations from invading our election process. Yet the 
Supreme Court did not fully address that area of the law in 
their opinion. The opinion said that 441(e) is on the books. It 
did not address the vital aspect that I would like you to talk 
about.
    Will this decision open a loophole in that foreign 
provision for multinational corporations or foreign-influenced 
corporations to be heavily involved in our elections? And if 
so, can you explain one or two ways a foreign-influenced 
company or government might do so?
    Ms. Gerken. Senator, I think the key concern is the way 
that foreign nationals might work through the domestic 
subsidiaries of foreign corporations. Now, there are rules in 
the FEC that address that question, although I will just say, 
with all due respect to the FEC, it has not been a model of an 
enforcement agency at all times in its history. And so Congress 
may wish to consider whether or not to put the FEC's 
regulations into the statute to ensure that they have more 
muscular enforcement. One can also use disclosure and disclose 
rules to address the question of foreign nationals.
    The key problem, I think, for you is that there really is 
not much precedent on this from the Supreme Court, and so we 
are sort of feeling our way through the questions of what would 
be constitutional. But I do not believe that the Supreme Court 
is going to say that it is illegitimate for Congress to 
consider whether foreign nationals are influencing our 
elections.
    Chairman Schumer. Right. And if we had an ownership rule--5 
percent, 20 percent, 30 percent; we know 51--we have heard Mr. 
Hoersting on that--do you think how high it goes affects the 
constitutionality? I mean, if there were one foreign-owned 
share somewhere of a huge corporation, obviously you are 
getting into violating the spirit of the Supreme Court's 
decision as much as we may not like it. But let us say it was 5 
percent or some relatively low number. Do you think that would 
get into a constitutional issue?
    Ms. Gerken. So you have two questions here. One is the 
Court's intuitions about this, and one is what is actually the 
practice of corporate law.
    On the side of the Court's intuitions, the Court used the 
phrase ``predominantly'' in the opinion in sort of an offhand 
statement. I do not believe that the Court will take that sort 
of seat-of-the-pants estimate, made in passing, to be the rule 
here. So I do think Congress has leeway to go below 50 percent.
    Chairman Schumer. Right.
    Ms. Gerken. However, I would strongly encourage you to go 
with the practice of corporate law. Corporate lawyers have been 
thinking for a very long time about what constitutes influence. 
Moreover, you have federal cognates as well. So this Congress 
has considered this question at least twice: one in worrying 
about the foreign control of airlines where it chose a 25-
percent number; and one in the Communications Act--which is, 
you know, quite similar to this situation--where it also chose 
a number that was well under 50 percent. So I think with an 
adequate factual record supported by corporate expertise, you 
can go below 50 percent.
    Chairman Schumer. Okay. Next, this is to Professor Foley 
about quasi-government agencies and quasi-involvement. I just 
want expand on your comments on the Amtrak case. If I am 
hearing you right, it seems that how a company interacts with 
the Government should determine the public-private balance, not 
how it is organized.
    Mr. Foley. Correct.
    Chairman Schumer. Okay. So if you agree, what other similar 
entities could fall under that category? And what types of 
Government involvements could fall under that category as well 
if, let us say, 80 percent of their contracts were with the 
Federal Government, something like that?
    Mr. Foley. Exactly. And I encourage members of this 
Committee and others to read the Lebron opinion because it is 
quite rich in the history of its discussion of quasi-
governmental corporations going all the way back to the First 
National Bank, all the way through World War II and the Great 
Depression, and the myriad different ways that Congress has 
used these various types of entities to achieve different 
public purposes. So there is a lot in there.
    For example, the Court differentiated between Amtrak on the 
one hand, which was the company in front of it, from COMSAT, 
the Communications Satellite Corporation, which has different 
ownership rules and had a little bit different relationship. So 
the Court says there is a spectrum here and different companies 
fall in different parts of the spectrum.
    But as, Chairman Schumer, you suggest, degrees of 
Government ownership matters. The 20-percent figure came up in 
that case because that was the percentage of ownership that the 
U.S. Government had in the First National Bank, contractual 
relationships between the Government and the corporation, the 
nature of the industry--you know, there has been a long history 
of understanding that public electric utilities, for example, 
have the characteristic of natural monopolies and, therefore, 
need a certain kind of regulation, maybe rate regulation and 
the like.
    So I think that industries that perform those public 
functions would have this character. That is why I think the 
language in Citizens United is actually encouraging on this 
point in relationship to the Lebron case and other precedent 
because Citizens United itself used that term ``Government 
functions.'' And so there will be corporations that undertake 
this role.
    For example, there has been a debate in American history 
from time to time over privatizing prisons. You know, if the 
Federal Government just hypothetically decided it wanted to 
privatize prisons because they thought that a for-profit 
company would run a prison better than the Government itself, 
that would still be doing a Government function; and even if it 
was set up as a for-profit corporation, under this analysis it 
would be quasi-governmental, which means that the Citizens 
United free speech rights that belong to Americans and private 
citizens, it would not apply because that would be a Government 
entity or a quasi-Government entity.
    Chairman Schumer. Thank you, and we may consult you further 
as we move the legislation.
    One final question, and then I will turn to Senator Murray. 
We are in the second round here, so we go right next to you. 
But this is to Mr. Hoersting and maybe to Ms. Hayward, not 
judging the constitutionality, but let me give you a 
hypothetical and just ask you if this bothers you. Okay?
    Congressman Smith has been the leading fighter against what 
he sees as abuse in drug companies. He wants to shorten the 
patent period. He wants to have tougher FDA rules. Call it what 
you will.
    Drug Company B says publicly, ``We are going to go after 
Smith. He is against what we believe in.'' It spends $5 
million, defeats Smith, and they say, ``Now, anyone else who 
does this again is going to be up against the same thing.'' 
Five million dollars is nothing to this company.
    A, do you think that would have an effect on how Congress 
behaved? Because you seemed to allude to the fact before that 
it might now. And, B, would it be a good thing, forgetting the 
constitutionality right here, or is this just a necessary price 
we pay for the First Amendment like people telling untruths?
    Mr. Hoersting. I think what I would say, Senator, is, first 
of all, if there were any sort of collusion or threats, 
something like that, that might be something addressed 
elsewhere. But, generally speaking, let me say----
    Chairman Schumer. There is no collusion or threats. It is a 
public statement: ``We are going to defeat Congressman Smith 
because he vehemently disagrees with us. We are going to spend 
$5 million.'' They do their own disclosure, whatever the laws 
are, and they defeat him.
    Mr. Hoersting. Thank you for the clarification----
    Chairman Schumer. And then they say, ``We are going to work 
to defeat anyone else who has similar views.'' That is their 
right.
    Mr. Hoersting. Yes. I think what you have there is you have 
an organization saying, ``We are against this candidate and we 
are prepared to spend vociferously to do so.'' That will raise 
the ire of competing factions who think, ``That is not right, 
and I happen to want patents shortened, so I will speak on 
behalf of this particular Congressman or on behalf of this 
particular Senator.'' And, furthermore, at the end of the day, 
all of this speech is taken into account by the voters who 
determine, ``Do I agree with the position taken by that $5 
million spender? And do I think it is valid? Or do I 
disagree''----
    Chairman Schumer. Well, wait a minute. Just let me change 
the hypothetical now.
    Mr. Hoersting. Sure, sure.
    Chairman Schumer. The $5 million they spend is not on drug 
issues. It is on the worst vote that Congressman Smith has 
taken.
    Mr. Hoersting. That is fine----
    Chairman Schumer. They announce they are going against him 
because of the drug issues--because this is how--you know, I 
know how the world works here.
    Mr. Hoersting. Sure.
    Chairman Schumer. And you are living in an idyllic world, I 
guess, where someone else would say, first, the ad is always on 
the issue that really motivates the contribution; and, second, 
that other speaking out can equal $5 million of negative ads. 
Don't you agree that is unrealistic?
    Mr. Hoersting. I do not agree, Senator. What I would say is 
that--what they say now is that the best ad these days is a 
response ad, a quick response ad. So I think you are always 
going to have competing voices, and at the end of the day----
    Chairman Schumer. Smith does not have $5 million. He does 
not have a competing response ad.
    Mr. Hoersting. Okay. I see this is a floating hypothetical.
    Chairman Schumer. Well, it is--no, you are just trying to 
take the typical situation and make it atypical. I am giving 
you the typical situation.
    Mr. Hoersting. Yes, and I think Smith would have friends, 
and I think people might be turned off by certain ads. And I 
think at the end of the day the idea here is that sovereign 
citizens have the ability to determine is this valid and am I 
for it or is this invalid and am I against it. And that is the 
bedrock principle really of our system, and I think that is 
where we are.
    Chairman Schumer. You know, in all due respect, I think you 
are living in a different world than we all live in. It would 
be nice. Okay.
    Do you want to say something about this, Professor Hayward?
    Ms. Hayward. Yes, Mr. Chairman, if I could real quickly. 
This is not a hypothetical. This really happened. The Anti-
Saloon League spent buckets of money in its era on initiatives 
as well as on candidates. It was not organized as a corporation 
and was able to do that under the Corrupt Practices Act. The 
people who were responding to the good folks being attacked by 
the Anti-Saloon League were the brewers. The brewers in 1916 
were prosecuted. The Anti-Saloon League never was.
    So I do not look at this so much as, ``Oh, now we have got 
people who are spending and we did not have them before.'' They 
were there before. But now you have got more who have the 
ability to muster their resources, and I think you have a----
    Chairman Schumer. You would agree that not on every issue 
there is an equal balance of resources. Correct?
    Ms. Hayward. I think you find that in heavily regulated 
contexts like what Ned is talking about where you really do not 
have----
    Chairman Schumer. You think there is an equal balance of 
resource in every issue?
    Ms. Hayward. No. I said I do not think so.
    Chairman Schumer. Okay.
    Ms. Hayward. But if I could just add, I think the 
hypotheticals are fun. I am a law professor, and I engage in 
them all the time. But I would really urge the Committee to see 
what happens, because it may be that the trouble you are 
anticipating right now is not the trouble that you are 
ultimately faced with responding to, but something else over 
here that you could never foresee.
    Chairman Schumer. Thank you.
    Mr. Foley. Senator Schumer?
    Chairman Schumer. Go ahead. I just wanted to get to Senator 
Murray. Go ahead, please, Mr. Foley, and I think Mr. Bullock 
wanted to say something.
    Mr. Foley. I was just going to add really quickly that if 
the concern is the large-level expenditures of $5 million and 
so, again, I believe my reading of the opinion and the oral 
argument is that Congress has considerable room to address 
those large-level expenditures. I think that was specifically 
what Justice Scalia was addressing in the oral argument. And, 
in fact, there are other passages of the Court's opinion that 
are in my written testimony that I will not quote here--unless 
you would like me to--that talk about that issue.
    Chairman Schumer. Do you agree with that, Professor Gerken?
    Ms. Gerken. I take a somewhat more skeptical view. It is a 
serious constitutional position, but I read the Court's opinion 
as being slightly more doctrinaire on this question.
    Chairman Schumer. Yes, so do I. I wish Mr. Foley were 
right. Last word, Mr. Bullock, just to respond to Mr. 
Hoersting's and Professor Hayward's characterization of what 
might happen.
    Mr. Bullock. Chairman Schumer, I think that campaigns would 
be much more fun in academia than in the real world. I think of 
outrageous claims in my campaign, like soft on sexual 
predators. I do not see the opposite side of that running to 
find the money to make a difference there.
    I think that when we get to the real world of political 
affairs, there is not going to be an equalizing force. And we 
can say that and know that without waiting for a decade of 
elections to pass to see that happen.
    Chairman Schumer. Senator Murray, thank you for your 
indulgence.
    Senator Murray. Absolutely. Well, thank you very much, Mr. 
Chairman. I apologize for being late. We have a Budget hearing 
as well this morning, and this is an important hearing, and I 
thank all of you for being here.
    I just want to say first--I just have to say it. I am 
appalled at the Supreme Court's decision in Citizens United and 
the majority's inability to understand what most Americans do 
today, that we already have too much corporate influence in 
American politics. That decision really undid a century of work 
to make sure that the voices of individual voters are not 
drowned out by special interests that are more interested in 
their own bottom line than the welfare of American citizens. 
And in my judgment, it will be much harder now for grass-roots 
campaigns, ordinary people to take on entrenched corporate 
power, on Wall Street, on health care, on issues like 
environmental regulation. And so I really appreciate your 
having this hearing and trying to determine what our role is 
now and what we can do at this point.
    I did want to ask a question. It seems that at a basic 
level the Supreme Court has now equated the freedom to speak 
with the freedom to spend. And I wanted to ask if 
constitutionally does it matter if a corporation could afford 
to buy all the air time on the TV channels most Americans watch 
on election day. Is that what we are constitutionally 
protecting here? It is my understanding that the Citizens 
United decision allows a corporation to do that, buy all of the 
air time before an election and somebody would not be allowed 
to even speak back. I wondered if anybody had a comment on 
that. Mr. Foley?
    Mr. Foley. Again, it goes back to my reading of the opinion 
as being about a facial challenge. There has been discussion 
today about how the Supreme Court, the majority opinion reached 
out to invalidate the statute on its face, whereas it could 
have decided the case more narrowly as a so-called as-applied 
challenge. To me, that is a very important point in terms of 
looking forward as to what sort of issues are left open and 
have not been decided by this case.
    So your scenario of buying all the airwaves to me is not 
addressed in the Citizens United opinion at all. It is a 
different fact pattern. It is a different circumstance. I think 
it would raise very different constitutional questions.
    I would say that the only thing that the Citizens United 
opinion does as a technical ruling is says that one statute is 
invalid because it was so broad, it was so sweeping, it was an 
absolute ban.
    Now, there is, of course, language in the opinion that 
hints at other things that would be constitutionally 
problematic. An extremely low ceiling as opposed to a zero-
level ceiling would also be constitutionally problematic, and 
we could discuss other examples. But it seems to me that if 
there--and, again, this goes back to Professor Gerken's correct 
point about developing a factual record. If in the Supreme 
Court litigation the record showed that kind of monopolization 
of the airwaves, that would be a factual predicate for a 
different kind of constitutional ruling.
    Senator Murray. So would we have to wait for an election to 
occur, see that happen, and then be able to proceed?
    Mr. Foley. No, not necessarily. There are different kinds 
of factual records, and Congress can build a factual record on 
its own, and then the U.S. Solicitor General obviously takes 
the record that Congress builds into the courtroom. That could 
be supplemented by evidence from elections as well, and 
obviously the more evidence and the more focused the evidence, 
the easier it is for a lawyer like myself whose had to appear 
in court to defend these kinds of statutes.
    But congressional evidence is a key point in the Court's 
deliberations about whether a statute meets the strict scrutiny 
standard, for example.
    Mr. Wertheimer. If I could add, the Federal Communications 
Act requires stations to sell reasonable amounts of time to 
candidates, but that time could be dramatically squeezed 
depending on how much money was being spent by outside groups. 
So I do not----
    Senator Murray. Does it say specifically candidates? 
Because----
    Mr. Wertheimer. It says Federal candidates.
    Senator Murray. Well, I just know in these economic times, 
when broadcasters are looking for top dollars, sometimes that 
time could be squeezed a lot.
    Mr. Wertheimer. Yes, it could, and one of the predictions 
that was written about after this decision was that the biggest 
winners here were broadcasters who are now going to get 
substantially more advertising by outside groups and benefit 
and profit from it.
    Senator Murray. Does anybody else want to comment on that?
    Mr. Hoersting. Senator, if I may, I think at some point the 
Supreme Court--what I think you are going to have to do 
eventually is put yourself in a position where you can afford 
your campaigns more so than you already can and for the party 
committees to be able to afford their activities more than they 
already can under McCain-Feingold provisions. I think at the 
end of the day that is probably the better way to go.
    Senator Murray. You mean to allow candidates to all of a 
sudden spend a whole bunch of money?
    Mr. Hoersting. To increase the amount that the party 
committees are allowed to take in for issue discussion----
    Senator Murray. So we are flooding a whole bunch more money 
into this by equality, so we are back to the question: Is this 
about money or is this about voices?
    Mr. Hoersting. Well, it is about--I think what I would say, 
you always hear the analogy that travel is not about money, but 
yet you cannot travel without money. I think you can very 
easily see that if there were a limit on airline tickets or 
gasoline, that would be an infringement on one's right to 
travel. And the Court has always said that while money is not 
speech, it is necessary to speech. So limiting expenditures 
without some basis for corruption is unconstitutional now, and 
that is always the inquiry. Is there a basis of corruption?
    Mr. Wertheimer. If I could comment on this point that Mr. 
Hoersting has made twice, the notion of solving this problem of 
opening the door to influence-buying corruption by 
corporations, by going back to a corrupt soft-money system that 
was closed down by a bipartisan majority vote in the House and 
Senate in a law signed by President Bush and then upheld by the 
Court in my view is simply an argument that says, well, we 
ought to respond to this influence-buying corruption problem by 
opening the door to much more influence-buying corruption.
    We cannot go back to what was a $500 million national 
scandal in the soft-money system. We have to find ways without 
opening the door to more influence-buying and corruption to 
respond to this decision. And I think there are going to be 
ways that will have effect. It will not solve the whole 
problem, obviously, but there are things that can be done, and 
I think Congress has to move immediately with first steps so 
that there will be some protections in place in the 2010 
congressional elections.
    Chairman Schumer. Thank you, Senator Murray.
    Senator Murray. I think we have our work cut out for us. I 
think the question becomes: Do we want to open up the 
floodgates and have, you know, a whole lot more money that this 
Congress has worked their way through? Or do we want to make 
sure that now that the Supreme Court decision has been made, we 
say what--how do we have laws that we put on individual 
candidates in campaigns apply to corporations?
    Chairman Schumer. Senator Bennett gets the last round.
    Senator Bennett. Thank you very much, Mr. Chairman. Just a 
comment about the effectiveness of McCain-Feingold to taking 
big money out of politics, and I go to the numbers we were 
given by Senator Kerry, that in 1998 the elections all cost 
$1.6 billion, and 10 years later, after the passage of McCain-
Feingold, it was $5.2 billion. So somehow the goal of taking 
big money out of politics was not achieved by passing that law.
    Let us go back to this whole question of how dramatic this 
decision is and how it is overturning so many years of 
precedent. Is there anyone on the panel who believes that if a 
corporation in 1908 that was critical of a Federal candidate at 
the time--ran a radio program that was critical of a candidate 
at the time, would it have been illegal for them to produce it 
and advertise it with corporate funds?
    Mr. Hoersting. I feel I need to defer to Allison Hayward 
here because she has written so well on this topic. But my 
understanding is, no, that would not be constitutional. The 
Court has waited decades to reach----
    Senator Bennett. I will get to that.
    Mr. Hoersting. Sure. I am sorry.
    Senator Bennett. In 1908, a corporation could have produced 
a radio show, that being the predominant media at the time, 
attacking a candidate and put it on the air, paid for it, and 
advertised it with corporate funds. Is that correct?
    Ms. Hayward. Absolutely. Yes.
    Senator Bennett. All right. Let us go to 1948. Would it 
have been illegal to use corporate funds to distribute and 
advertise ``Truman the Movie'' prior to that election?
    Ms. Hayward. Well--in 1948.
    Senator Bennett. 1948.
    Ms. Hayward. It might have been because there was not an 
exemption for editorials or commentary in the expenditure ban 
that was part of Taft-Hartley.
    Senator Bennett. Okay. So they do it in 1944 against 
Roosevelt.
    Ms. Hayward. Okay. That would have been legal.
    Senator Bennett. All right. So what about, you know, in 
2000, of course, Citizens United would have been prohibited 
from distributing and advertising ``Hillary the Movie'' in New 
York 2 months before the general election, and that had to do 
with the 60-day ban and so on that was put in place.
    So we have a long history of corporations having the right 
to do this kind of thing, and then it is changed, you say first 
in a fashion in Taft-Hartley and then, of course, by the 
passage of McCain-Feingold.
    Ms. Hayward. That is right.
    Senator Bennett. It does not sound to me like we are 
overturning a whole history of legislative bans if we are only 
overturning something that is relatively recent.
    Ms. Hayward. Pardon me, if I could just interject.
    Senator Bennett. Surely.
    Ms. Hayward. There was great prosecutorial queasiness about 
the expenditure ban from the very beginning, and you can see 
there is testimony before the Senate from 1955 where the 
Assistant Attorney General at that time announces that the 
Department of Justice is not prosecuting under the expenditure 
ban because they are concerned about its constitutionality. 
There is other material I have gotten out of archives that I 
would be happy to share with the Committee if the Committee is 
interested that show that concern dating back to 1948, just at 
the very beginning.
    I think the expenditure ban in Taft-Hartley caught a lot of 
people by surprise, and thus, you do not really have much of a 
court record on its scope at that period because the Department 
of Justice was not pursuing cases under it. They did not want 
that bad decision that would turn the whole thing 
unconstitutional and lead to some other bad consequence. And so 
they simply did not bring the cases.
    Senator Bennett. All right. Mr. Wertheimer, you referred to 
Justice Stevens' dissent. Obviously, that is not the only 
dissent Justice Stevens has written. Let me quote Justice 
Stevens in Buckley, and he wrote the following. He said, ``I am 
convinced that Buckley's holding on expenditure limits is wrong 
and that the time has come to overrule it. I have not reached 
this conclusion lightly. As Justice Breyer correctly observes, 
stare decisis is a principle of fundamental importance. But it 
is not an inexorable command, and several factors taken 
together provide special justification for revisiting the 
constitutionality of statutory limits on candidate 
expenditures.''
    Now, if the Court had heeded Justice Stevens' advice in 
that case and overruled Buckley on that point, what would have 
been your reaction? How would you have felt about that 
decision?
    Mr. Wertheimer. Which case are you referring to his writing 
in?
    Senator Bennett. Buckley v. Valeo.
    Mr. Wertheimer. Well, you quoted him as talking about 
overruling Buckley. What case was he writing in? I am not 
sure----
    Senator Bennett. Oh, I am sorry. I am sorry. It was Randall 
v. Sorrell.
    Mr. Wertheimer. Yes.
    Senator Bennett. Would you have been pleased if the Court 
had overruled Buckley?
    Mr. Wertheimer. Overruled Buckley on expenditure limits?
    Senator Bennett. Yes.
    Mr. Wertheimer. Not particularly, no. But I would say to 
you that there clearly are exceptions to stare decisis, which 
is a well-established concept. They do not exist, in my view, 
in the Citizens United case.
    And if I could take one minute to respond to the comment 
you made about McCain-Feingold?
    Senator Bennett. Sure.
    Mr. Wertheimer. It was not about big money. It was about 
big contributions. It was about million-dollar contributions 
from labor organizations or $5 million contributions or 
multimillion-dollar contributions from trade associations. That 
is what the soft-money ban took out of the system. It was never 
intended to address the question of all of the money in the 
system. It was intended to address the contributions that had 
the most clear power to buy influence over Government 
decisions. And if you look at the Buckley decision approving 
limits on contributions, it says that inherently large 
financial contributions have the power to corrupt and create 
the appearance of corruption.
    Senator Bennett. Thank you for that. The overall pattern 
that I recall out of the press was this is going to take big 
money out of politics, and I appreciate your clarifying that 
that was not your view of it and not the primary thing that was 
driving you for your advocacy.
    Finally, Mr. Chairman, I would just go back to the 
situation we have heard many times before in this debate, and 
maybe it does not need to be repeated, but I want to put it on 
the table for us to recall, and that is the McCarthy campaign 
of 1968 when Senator McCarthy went to New Hampshire----
    Chairman Schumer. I worked in it.
    Senator Bennett. You worked in it. All right. And Senator 
McCarthy went to five individuals, as I recall--this shows what 
inflation has happened since 1968. He said, ``I am going to 
challenge President Johnson, and to do that I need some 
money.'' And each one of the five gave him $100,000.
    Chairman Schumer. I was not one of those.
    Senator Bennett. You were not one of those. All right.
    [Laughter.]
    Senator Bennett. Each one of the five gave him $100,000, 
and with half a million dollars and the scale of expenditure 
challenges and organizational costs and so on, he attracted you 
to New Hampshire and probably prevented Lyndon Johnson from 
running for reelection. And that would be illegal today. Eugene 
McCarthy would not have been allowed to challenge a sitting 
President today by that kind of funding. I am sure you do not 
feel that Eugene McCarthy was corrupted by those five 
gentlemen--I think they were all gentlemen--who gave him the 
$100,000. I do not think he was corrupted. And I think we need 
to be a little careful in jumping to many of the conclusions we 
do on the particular issue of campaign finance reform.
    I do understand, Mr. Bullock, the challenge of having 
outside groups come in and spend a whole lot of money in your 
State to distort your position. I am going through it right 
now. None of my opponents in my own race have any money--well, 
that is not true. One of them is a self-funder, and he is a 
millionaire entrepreneur, and he is putting in the money he 
needs to support his race to challenge me. But an outside group 
having little or nothing to do with the State of Utah is coming 
into the State, they have promised the whole--the ``works''--
television, radio, billboards, mail, the whole thing. I really 
do not like it. But it is their constitutional right, and there 
is nothing I want to do to prevent them from doing it, even 
though it makes my life very unhappy.
    So I know what you mean when people come in and distort 
your record, come in from out of State and distort your record. 
I sympathize with you, and I am glad you have prevailed, and I 
intend to prevail against that kind of pressure. But, 
constitutionally, I do not think there is anything we can do to 
prevent them from doing it.
    Thank you, Mr. Chairman.
    Chairman Schumer. In the spirit of bipartisanship, Senator 
Bennett gets the last word.
    Without objection, the hearing record will remain open for 
10 business days for additional statements and documents the 
Committee may receive.
    The Committee is in receipt of statements from groups--I do 
not have to name them all, do I? No. Without objection, they 
are all going to be added.
    Chairman Schumer. I want to thank my colleagues for 
participating. I want to thank our witnesses for their 
excellent help, guidance, and diversity on this issue.
    The hearing is closed.
    [Whereupon, at 12:05 p.m., the Committee was adjourned.]


                      APPENDIX MATERIAL SUBMITTED

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0

 NOMINATION OF STEPHEN T. AYERS, AIA, LEED, AP TO BE ARCHITECT OF THE 
                                CAPITOL

                              ----------                              


                        THURSDAY, APRIL 15, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                   Washington, D.C.
    The Committees met, pursuant to notice, at 10:03 a.m., in 
Room 301, Russell Senate Office Building, Hon. Mark L. Pryor 
presiding.
    Senators Present: Schumer, Pryor, Bennett, and Cochran.
    Staff Present: Jean Bordewich, Staff Director; Jennifer 
Griffith, Deputy Staff Director; Jason Abel, Chief Counsel; 
Josh Brekenfeld, Professional Staff; Lauryn Bruck, Professional 
Staff; Lynden Armstrong, Chief Clerk; Matthew McGowan, 
Professional Staff; Justin Perkins, Staff Assistant; Mary 
Jones, Republican Staff Director; Shaun Parkin, Republican 
Deputy Staff Director; Paul Vinovich, Republican Chief Counsel; 
Abbie Platt, Republican Professional Staff; Trish Kent, 
Professional Staff; and Rachel Creviston, Republican 
Professional Staff.
    Senator Pryor. I will call the Rules Committee to order. I 
want to thank everyone for being here today. Mr. Ayers, I 
especially want to thank you for being here and I am going to 
chair the hearing today but I would like to turn it over to the 
real chairman of the hearing who has to slip away because of 
his schedule. Senator Schumer.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. Thank you. Well, I want to thank you. 
First, I want to thank Senator Pryor for chairing the hearing. 
I told Mr. Ayers he is the guy you have got to pay attention to 
around here. And I certainly want to thank my friend and 
colleague and just a fine man and outstanding senator, Senator 
Bennett, for being here as well.
    And of course, I want to welcome you, our nominee Stephen 
Ayers. Mr. Ayers has been serving as the Acting Architect to 
the Capitol for three years and is here to be confirmed to a 
ten-year term as the Architect of the Capitol. He's been joined 
today by his family: his wife Jennifer, his daughter Stephanie, 
his son Nick, his parents Ben and Jane, parents-in-law Chuck 
and Shirl.
    brother Ben, sister Jennifer. Welcome to you all.
    The history of the Office of the Architect to the Capitol 
is as old as the building itself. Individuals who have held the 
title, have been instrumental in shaping our nation's Capitol 
from its early beginnings into the working symbol of democracy 
as we see it today. William Thornton is recognized as the first 
Architect to the Capitol because his design of the Capitol was 
chosen by Washington in 1793. So we have a lot of history here.
    Throughout the 1800's, four men were hired to oversee the 
Capitol's construction, creating much of the structure we still 
use and occupy today.
    Today the Architect to the Capitol employs over 2,600 staff 
and manages a budget of $600 million a year. Mr. Ayers' 
nomination by the President came after a rigorous bipartisan 
and bicameral selection process that began in the Fall of 2006, 
three and a half years ago.
    The nomination was approved by the President Pro Tempore of 
the Senate, the Speaker of the House, the Majority and Minority 
Leaders of both houses, the Chairman and Ranking Member of the 
Committee on House Administration, the Chairman and Ranking 
Members of the House and Senate Appropriations Committee, and 
of course, by the Chairman and Ranking Members of this 
committee.
    And I do want to say this; Mr. Ayers has had wide acclaim. 
Just about everybody wanted to see him become the Architect to 
the Capitol so there was very little controversy. It was a long 
and rigorous process with other candidates but Mr. Ayers came 
through with flying colors. This wasn't a situation where there 
were three candidates and each one had its strengths and 
weaknesses. Mr. Ayers was all strengths.
    Senator Pryor will go over Mr. Ayer's career history. I'll 
just end by welcoming him and thanking him for being. I look 
forward to his being confirmed as Architect to the Capitol and 
to working with him in the years to come.
    Senator Pryor1.
    Senator Pryor. Thank you.
    Chairman Schumer. And I apologize to everybody. I have to 
get on my way.
    Mr. Ayers. Thank you Mr. Chairman.
    Senator Pryor. Thank you very much for your leadership. 
Senator Bennett, would you like to make an opening statement?

              OPENING STATEMENT OF SENATOR BENNETT

    Senator Bennett. Thank you very much. As Chairman Schumer 
has indicated, this has been a three year job interview. The 
process started and I was new to this position on the Rules 
Committee and we did indeed start out with a fairly long list 
of candidates and we would come to a conclusion this is what we 
think it ought to be and then the House would say, no we don't 
like that one and then members of this committee would say 
well, we prefer this one to that one and we would settle on 
somebody and then someone else would not like it.
    And the one steadying influence through all of that turmoil 
was the fact that Stephen Ayers as Acting Architect was keeping 
the doors open, the lights on and things going forward. And it 
emerged out of all of that experience that we had a very 
competent Architect to the Capitol and why were we looking 
around? And why didn't we stay with what we had?
    It took a little while to convince everybody that that was 
the thing that we should do, but it became very clear that that 
is the thing that we should do. So this is turning into a 
testimonial rather than a hearing, I almost said roast, but it 
is not.
    [Laughter.]
    Senator Bennett. Not that kind of thing. The thing that I 
would like to put in the record, is that during this three year 
long job interview and in the period prior to that when Stephen 
Ayers was the Deputy Architect to the Capitol it was not a time 
of calm and serenity around here. It was a time of great 
controversy as we were involved in the largest addition to the 
Capitol in the history of the Capitol.
    The Capitol Visitor Center added more square footage to the 
Capitol than any other change in the Capitol in its history and 
it was controversial for a variety of reasons, some of them 
political, some of them financial, some of them aesthetic and a 
steady hand as I say to keep the thing moving along 
intelligently was necessary.
    Alan Hantman, who was the Architect to the Capitol deserves 
credit for the work he did there, but his Deputy was a very, 
very important part of keeping the thing online and going 
forward in a legitimate fashion and then when Mr. Hantman 
stepped down, taking over the responsibility of making sure 
that it opened in an intelligent fashion. And we can look back 
on it now as often happens in history, when you look back on 
things that were controversial and say, Boy, we're really glad 
we did it. We're really glad that this was handled in such a 
way and that kind of erases the historical memory of how 
difficult it was to do it.
    But we now have the statistics that show that visitors to 
the Capitol have increased by over a 100 percent and I am sure 
the visitor experience has gotten better, particularly as we 
are coming into the summer by far more than a 100 percent, 
because I remember the lines in the heat with people waiting 
for hours standing in line to get into the Capitol with the 
possibility of any kind of problem. The security challenge 
after 9/11 of having crowds out on the plaza with no physical 
protection and a huge target for a terrorist attack.
    Now all of that is gone. The plaza is back looking better 
than it did before and the square footage of the Capitol 
Visitor Center accommodating twice as many visitors in a secure 
area, air-conditioned, plenty of rest rooms, all of the other 
things which future generations will take for granted as part 
of the Capitol Visitor's experience and have no memory of how 
difficult things used to be.
    And yes, those who came before him made a very significant 
contribution to that but Stephen Ayers played a very 
significant role in seeing to it that we got what we have and 
it is only fitting now that we have it, that he be continued 
for another ten years so that when the plumbing starts to leak 
he will know where to go to fix it. And I am happy to join with 
the Chairman and Stephen in welcoming you here. Telling you 
this appointment is long overdue and adding my endorsement to 
the assignment.
    Senator Pryor. Thank you Senator Bennett. Senator Cochran, 
do you have an opening statement?

              OPENING STATEMENT OF SENATOR COCHRAN

    Senator Cochran. Mr. Chairman, thank you. I am glad to be 
able to come by and congratulate Stephen Ayers for his 
nomination and his imminent confirmation as Architect of the 
Capitol. This has, as my good friend from Utah said, it has 
been a long and arduous journey, but I am glad to see that it 
has turned out as it has and that we are going to be able to 
have a full fledged, confirmed Architect of the Capitol finally 
and to thank him for his patience in his demeanor throughout 
all of this.
    I think the changes that we have seen in the Capitol over 
the last few years are just enormously impressive for many 
reasons. Those of us who have been on the Rules Committee for 
awhile and have attended a lot of the hearings and engaged in a 
lot of conversations, not just about who should be the 
Architect, but the redesigning of the Capitol. A huge job.
    And I think Mr. Ayers deserves our accolades and 
compliments on a successful completion of that work as well. So 
that is why I am here Mr. Chairman and I am glad to join you 
and Senator Bennett in the work of this committee and the 
confirmation of this outstanding new Architect of the Capitol. 
You can strike out the word `acting' now.

               OPENING STATEMENT OF SENATOR PRYOR

    Senator Pryor. Thank you. Thanks Senator Cochran. I do have 
a longer statement for the record, but let me just say a few 
words here. If confirmed Mr. Ayers will become the 11th 
Architect of the Capitol. He graduated from the University of 
Maryland with a bachelor's degree in Architecture and received 
his Masters degree in Systems Management from the University of 
Southern California.
    Mr. Ayers served as an officer in the U.S. Air Force, was 
promoted to Captain and received the Meritorious Service Medal 
for his five years of military service.
    The nominee is no stranger to the Architect's organization. 
In 1997 he joined the Office of the Architect of the Capitol as 
an Assistant Superintendent of the Senate Office Buildings and 
was later promoted to Deputy Superintendent. His next job took 
him across the street to the Library of Congress where he 
assumed the position of the Superintendent of the Library 
Buildings and Grounds in 2002. He was named Deputy Architect of 
the Capitol in 2006 and in 2007 he became Acting Architect to 
the Capitol.
    Since that time Mr. Ayers successfully negotiated a 
settlement with the Office of Compliance addressing asbestos 
and hazard mitigation in the Capitol Power Plant's utility 
tunnels and improved the Agency's performance-based Strategic 
Plan for fiscal years 2007 through 2011.
    When Mr. Ayers assumed the role of Acting Architect, there 
was no projected date for completing the construction of the 
Capitol Visitor Center. He set and met a date for the 
substantial completion of this building. Under his leadership 
the Architect's office successfully completed the Fire and Life 
Safety Systems Testing, which was required before the facility 
could open. On December 2, 2008 the long awaited Capitol 
Visitor Center opened its doors to the public.
    Under the nominee's leadership as Acting Architect and in 
his previous role as Deputy Architect/Chief Operating Officer, 
the Agency improved cost accounting procedures and internal 
controls and has received five consecutive clean financial 
audits.
    And, again, I have a longer statement for the record, but I 
say those things just to demonstrate that this is the right 
person for this job and we are so happy to have you with us 
today and what I will do now is ask you to stand and raise your 
right hand and I will administer the oath.
    Do you swear that the testimony you are to provide is the 
truth, the whole truth and nothing but the truth, so help you 
God?
    Mr. Ayers. I do.
    Senator Pryor. Please be seated.
    I have just a few questions, but I would like to hear your 
opening statement first, please.

TESTIMONY OF STEPHEN T. AYERS, AIA, LEED AP, TO BE ARCHITECT OF 
                          THE CAPITOL

    Mr. Ayers. Well, thank you so much Mr. Chairman, Senator 
Bennett and Senator Cochran.
    It is an honor and a real privilege for me to be here today 
as the Presidential Nominee for the position of Architect to 
the Capitol and I would like to first extend my sincerest 
thanks and gratitude to all of the members of the Nominating 
Committee for recommending me to President Obama to serve as 
the 11th Architect to the Capitol.
    I truly appreciate the trust that the Congress and the 
President have placed in me.
    As the Chairman noted, I am joined here today by my 
wonderful family and it is because of their love and support 
that I have been able to pursue a career in public service. I 
really appreciate them being here today to continue that 
supportive role.
    As the Chairman noted I have served as Acting Architect 
since 2007 and in this role I think I have been able to combine 
two important skill sets. First of course, that of being a 
licensed architect and second, the ability to focus on business 
management and to bring best business management practices to 
the table.
    The stewardship of the Capitol Complex is important to me, 
it is important to the Congress, and it is important to the 
Nation and it is equally a very unique challenge. This 
challenge is amplified by the historic significance and iconic 
nature of our buildings, the landscape, and aging physical 
infrastructure, as well as the day-to-day requirements of the 
Congress.
    Chief among these challenges is the significant backlog of 
deferred maintenance and capital renewal projects totaling 
today in excess of $1.5 billion over the next ten years, as 
well as security, life-safety, accessibility, and environmental 
requirements. To assist us in our efforts to address this 
backlog of projects, we have successfully developed and 
implemented a robust and balanced process to prioritize 
projects based on a facility's condition assessment and the 
level of maintenance required in any given building.
    This process uses several tools including Facility 
Condition Assessments, the Capitol Complex Master Plan, and 
Jurisdiction Plans, among other criteria.
    The component that provides us and the Congress with the 
big picture, the 20-year look ahead that queues up priorities 
and investments and projects, is the Capitol Complex Master 
Plan. The Master Plan and the other prioritization tools 
provide Congress with concrete, practical assessments of our 
infrastructure and by using these tools, Congress can make wise 
investments in the Capitol Complex in the future.
    Mr. Chairman, great organizations are made up of great 
people and to ensure that the AOC is an employer of choice, I 
have set out to invest in our most valuable assets, our 
employees. And it is my responsibility to provide them with the 
right tools, the right equipment, and the right training to 
allow them to build on our successes and to be the best of the 
best. In that regard, I have implemented a number of workforce 
programs to provide greater flexibilities including a telework 
program, a flexible work schedule program, and a student loan 
repayment program among many other initiatives that they so 
richly deserve.
    And I am committed to using sustainable design practices 
whether we are building a new facility or maintaining one that 
is over 200 years old. With the support of Congress we have 
implemented a number of programs and projects designed to save 
energy and conserve our natural resources.
    Last year we entered into energy savings performance 
contracts for the Senate, the House, and the Capitol buildings 
that include $93 million in planned facility energy-related 
upgrades. These are really important public/private 
partnerships that will help us and the Congress achieve its 
energy reduction goals.
    To ensure that we continue to see a reduction in energy 
consumption, we are evaluating proven technologies that can be 
implemented in our continued effort to increase energy 
efficiencies across the Capitol campus. Among the options being 
considered is co-generation, which simultaneously generates 
both electricity and heat, as well as the use of biofuels in 
the Capitol Power Plant. Moving in a more sustainable direction 
will enhance our efforts to meet energy reduction mandates as 
well as provide higher energy system security and reliability 
with lower overall costs.
    This year, the agency will be updating our Strategic Plan 
to set new goals and priorities that will drive our 
organization for the next five years.
    Consistently an overwhelming majority of our customers have 
said that they are satisfied or very satisfied with the 
services the Architect provides in our annual surveys. However, 
as one of my favorite authors, Jim Collins, points out the 
challenge before us is not to let good get in the way of great. 
And I will not be satisfied until we are able to achieve a 100 
percent satisfaction rating.
    And should this committee recommend that I be confirmed by 
the full Senate, I will be honored to continue to work beside 
the very talented men and women that make up this great team of 
the Architect of the Capitol. Thank you, and I would be happy 
to answer any questions you may have.
    [The prepared statement of Mr. Ayers follows:]
    Senator Pryor. Thank you. Let me start with one question: 
in 2003 Congress directed the Architect to the Capitol to 
complete a 20-year Capitol Complex Master Plan.
    Could you give us a status report on that and tell me if it 
is not completed when it will be completed?
    Mr. Ayers. Well, certainly Mr. Chairman, the Capitol 
Complex Master Plan is a really important tool, not just for 
the Architect, but for the Congress as a whole. It provides a 
road map of the facilities for the next 20 years. It is so 
important for us to look ahead so that we can ensure that we 
provide the facilities necessary for the Congress to conduct 
its business and we do not get ourselves in the situation where 
we have to close a building or we are so overcrowded that the 
Congress cannot effectively conduct its business. So that is 
really the overarching purpose for the plan.
    Today, we are nearly finished with the plan. The Capitol 
Complex Master Plan is made up of nine individual plans--one 
for the Senate and one for the House and Capitol and the 
Library and the Supreme Court, among others. And among those, 
two of those nine plans have been approved. Three of them are 
before the Congress awaiting approval. And four of them we are 
still working on and nearing completion. I suspect it will be 
at least another year before we are able to complete those and 
gain the approval and imprimatur of the Congress.
    Senator Pryor. I notice that the AOC budget request for 
FY2011 included a 25 percent increase over the FY2010 funding 
levels. Senator Nelson, Chairman of the Legislative Branch 
Subcommittee on the Appropriations Committee, has said that he 
wants a flat budget for FY2011.
    If confirmed, how do you plan to move the agency forward if 
you have a flat budget?
    Mr. Ayers. A flat budget for us, Senator Pryor, is a cut of 
$155 million out of our FY2011 budget request. So a cut that 
significant, I think, is going to take strong leadership, it is 
going to require tough decisions, and it is going to take 
partnership with the Congress. We have laid out a plan to do 
that and have submitted that to Chairman Nelson.
    I think we have taken a good approach. We first looked at 
the money that Congress has already provided the Agency and we 
were able to drive $15 million out of that to apply towards the 
FY2011 budget request. Similarly, we looked carefully at our 
Operations as the Architect's budget is really made up of our 
Operations piece--salaries and expenses--and then at our 
projects. So we were able drive another $14 or $15 million out 
of our Operations request.
    The rest of the budget is simply projects that must be 
deferred or projects that have to be broken down into smaller 
pieces and phased. I think we have laid out a smart plan to be 
able to do that if that is the way that our 2011 budget turns 
out.
    Senator Pryor. This will be my last question, because I 
want to hear from my colleagues, I do not want to revisit all 
of the details of the planning and construction of the Capitol 
Visitor Center, but as you know, it started out as a $265 
million building. It was supposed to be ready for the January 
2005 Presidential Inauguration. Over time it became a $600 
million building and it was finally opened in December of 2008.
    I know that you have another big project on the horizon, 
the complete renovation of the Cannon House Office Building. 
Are there lessons learned from the CVC and that whole process 
that we can apply to the Cannon remodel and what would those 
be?
    Mr. Ayers. I think there are, Mr. Chairman. I think that is 
a really important point that to be a great organization, we 
have to be able to look at ourselves in the mirror, be our own 
worst critics and learn from ourselves and ensure that we have 
a system of continual learning and continual improvement.
    I am really proud of the fact that I believe that we as an 
organization do have that mantra. We have looked very carefully 
at the Capitol Visitor Center and taken it apart piece-by-piece 
to understand where those cost overruns and where those time 
delays happened. I think they really come down to a couple of 
overarching themes.
    One, of course, is we have to be tenacious about defining 
the scope of a project up front before we start construction 
and we are setting out to do that with the Cannon Building 
renovation. Secondly, we have to have a rigorous change 
management process in place so that when we are asked to make 
changes on a construction project while we are in construction, 
we effectively communicate to the Congress the cost and 
schedule impacts. We need to communicate to the highest levels 
of Congress the cost and schedule impact of changes while we 
are in construction.
    I think those are the two overarching lessons learned. We 
have got a great document that we have partnered with the 
Government Accountability Office to develop on other lessons 
learned, but I think those are the two most important that I 
take away from that project.
    Senator Pryor. Senator Bennett.
    Senator Bennett. Thank you very much Mr. Chairman.
    In my experience dealing with these issues now, yes we have 
to keep the lights on and the function going, but you have two 
areas that are unique to this architectural situation that you 
do not find in a typical office building or college campus or 
whatever you may want to compare this to. And they are historic 
preservation and security.
    There are some places where you simply say this building 
does not fit our needs anymore so we will tear it down and 
build a new one. You cannot do that with the Capitol. The 
necessity for historic preservation is there and we have to 
keep using it even as we are preserving a building that is as 
old as this one.
    And then the second one that came home to us very 
dramatically after 9/11 was security. So I would like to talk a 
little bit about both of those areas and let's start with 
security. I have become a bit of a nag on the issue of the 
Capitol Police and the unification of the Capitol Police 
Service so that it includes the Library of Congress and other 
things. And I would like an update on where you think that is 
going and how it is working.
    And particularly, let's talk about the Capitol Police Radio 
Project, which I understand is to be completed by March of 
2011. And are we on track for that? And what are we going to 
get out of that in terms of increased security for the campus?
    Mr. Ayers. You mentioned two things. The first is the 
integration of the Library of Congress Police Force with the 
United States Capitol Police Force, and obviously I sit with 
the Senate and House Sergeant of Arms on the Capitol Police 
Board and have been responsible with the Chief to pull those 
forces together. I think it has been a good process and quite 
frankly, better than we expected it to be. And they are fully 
integrated now and it really seems to be working well. The 
three of us on the Board stay in very close contact with the 
Chief on this particular issue and the Chief is very 
comfortable with the integration of those new officers into the 
United States Capitol Police.
    The second issue you mentioned, Senator Bennett, is this 
very, very important radio project for the Capitol Police. The 
current radios with the Capitol Police are not secured and 
secondly, they are not able to join in with other local and 
federal law enforcement officials on their network.
    So we are working, the Architect's Office is working very 
closely with the Capitol Police on the implementation of a new 
digital, encrypted radio system for the United States Capitol 
Police. And our portion of that work is to assist in managing 
the technical design aspect, as well as the installation of 
that radio system whether it is exterior building antennas or 
interior building antennas throughout the Capitol Complex.
    So that process is going smoothly. We do not see any delays 
or cost overruns on that job. It is being effectively managed 
and we are very, very carefully watching where the designers 
are placing their antennas both inside and outside to ensure 
that we do not do any harm to any of the historic or 
historically significant portions of any of the buildings 
across the Capitol Complex, not just the Capitol building.
    Senator Bennett. Yeah. Can you talk about the dome 
renovations and rehabilitation?
    It seems like the dome is always being rehabilitated. The 
whole I have been here there has been work on the dome, but 
where are we with respect to that?
    Mr. Ayers. We have got a couple of things that we know we 
need to do to the dome. Just this year we are doing interim 
painting and caulking and that is to buy another two or three 
years before, we believe, we are going to have to take the 
paint off of the dome and completely repaint it and fix many of 
the deteriorating architectural elements that are part of the 
dome.
    That has not happened since the East Front Extension, which 
I believe was completed in the early '60s. There are some great 
photographs of the dome showing how it looked with just its red 
rust preventative coating back in the '60s. We need to do that 
again. Our plans are to do that within the next three to four 
years; take all of that lead-based paint off of the Capitol 
dome, repaint it, and reseal it. That is a significant project 
to the tune of maybe $100 million that needs to be invested 
back into the Capitol dome.
    But obviously it is our symbol of representative democracy 
and the most recognizable symbol in the world and I am 
confident, together with the Congress, we will make the 
appropriate investments there.
    Senator Bennett. Thank you. Thank you Mr. Chairman.
    Senator Pryor. Did you have any other questions? Are you 
sure?
    Let me ask one last question about the greening of the 
Senate Office Building. I know that there an Energy Savings 
Performance Contract that you have entered into and it sounds 
like that you are ahead of your goal in terms of reaching your 
energy savings goal for the Senate.
    Will that continue? Will we continue to exceed that goal? 
Or once we hit the goal will we stop doing what we are doing? 
Or do we always try to become more efficient and save taxpayer 
dollars and greenhouse gas emissions?
    Mr. Ayers. Thank you Mr. Chairman. Our legislative mandate 
with the Energy Policy Act of 2005 and the Energy Independence 
and Security Act of 2007 requires us to reduce energy intensity 
three percent per year for a total of ten years; a total of 30 
percent reduction in the Senate office buildings. We are on 
track to do that. For the first four years of that program we 
have met or exceeded our goals. We expect the next year or two 
to be under our goal, but ultimately, to come back and meet our 
goals for the rest of the duration. And at the end of that ten 
year period, we will have met or exceed that 30 percent 
reduction.
    Our biggest effort to increase sustainability are the 
energy savings performance contracts and we are implementing 
those right now in the House, Senate and Capitol. As those 
construction efforts take place, energy reduction will dip a 
little bit until those construction projects are complete and, 
once they are complete, they will begin to save more energy. 
Ultimately, will then exceed our goal and meet our 30 percent 
reduction goal. And we are very confident that we will be able 
to do that.
    Senator Pryor. Great. Senator Bennett, you do not have any 
other questions?
    Well, I want to thank you on behalf of the Rules Committee 
for your testimony this morning. The record will remain open 
for five business days for additional statements. The Committee 
plans to consider this nomination in a timely manner so the 
Senate can confirm Mr. Ayers as the next Architect of the 
Capitol.
    Since there is no further business before the Committee, 
the Committee is adjourned subject to the call of the chair.
    Mr. Ayers. Thank you.
    Senator Pryor. Thank you.
    [Whereupon, at 10:36 a.m., the committee recessed, subject 
to the call of the Chair.]
                      APPENDIX MATERIAL SUBMITTED

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     VOTING BY MAIL: AN EXAMINATION OF STATE AND LOCAL EXPERIENCES

                              ----------                              


                         WEDNESDAY, MAY 5, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 10:06 a.m., in 
Room SR-301, Russell Senate Office Building, Hon. Charles E. 
Schumer, Chairman of the committee, presiding.
    Present: Senators Schumer and Roberts.
    Staff Present: Jean Bordewich, Staff Director; Jason Abel, 
Chief Counsel; Veronica Gillespie, Elections Counsel; Adam 
Ambrogi, Counsel; Sonia Gill, Counsel; Julia Richardson, 
Counsel; Lauryn Bruck, Professional Staff; Lynden Armstrong, 
Chief Clerk; Matthew McGowan, Professional Staff; Mary Jones, 
Republican Staff Director; Paul Vinovich, Republican Chief 
Counsel; Michael Merrell, Republican Counsel; Rachel Creviston, 
Republican Professional Staff; and Justin Lee, Republican 
Intern.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. The Rules Committee will come to order. 
Good morning. First, I want to thank my friend, Senator 
Roberts, for joining us this morning. Ranking Member Bennett is 
unable to attend. I would also like to welcome Senator Ron 
Wyden of Oregon and Congresswoman Susan Davis of California, 
two very strong advocates of voting by mail.
    Now, I have had a lot of opportunity to work with Senator 
Wyden on many, many occasions, most recently on the DISCLOSE 
Act, where a major portion of our bill comes from provisions 
that he and Senator Collins put together originally. I can say 
that there is no truer champion of reform than Senator Wyden. 
He is a great champion for all Oregon constituents and Oregon 
is always first on his mind when he is legislating.
    In this case, I can tell the public here that I, probably a 
minimum of 25 times, have heard Ron Wyden talk to the 
Democratic Caucus about why voting by mail is a great thing and 
how well it works in Oregon, as recently as our last Tuesday 
lunch, not about this hearing, but it came up. So we are 
honored to have him here today and look forward to his insight, 
experience, firsthand knowledge of election law issues.
    I also want to thank Congresswoman Davis, who has also 
called me on this issue on several occasions and is as strong 
an advocate in the House as Senator Wyden is in the Senate.
    So we are going to examine vote by mail systems and 
programs used by States for Federal elections. Vote by mail is 
no longer a rare exception. Today, many voters throughout the 
country exercise their constitutional right to vote by mailing 
in their ballot, and the most well known vote by mail State is 
Oregon, which is the only State that conducts all elections 
entirely through its vote by mail system. It is amazing, and I 
followed it a little bit myself.
    Washington State is a close second. It conducts elections 
in 38 of 39 counties by mail. I don't know if one of our 
witnesses can tell us why one county isn't involved. Maybe they 
don't have the Post Office serving them.
    Meanwhile, Colorado voters cast ballots by mail at a 64 
percent rate. And in our largest State, California, voters went 
44 percent by mail in the 2008 Federal elections. Some of those 
States are represented by members on this committee, Senator 
Feinstein and Senator Murray.
    But what do we actually mean when we talk about vote by 
mail? There are two different ideas and we are going to discuss 
them today.
    First is what many call, appropriately, the Oregon model. 
In this model, a State does not have polling places and its 
election is conducted solely by mail. The second is what is 
called the ``no excuse absentee balloting,'' or universal vote 
by mail. In this system, polling places still exist as much as 
they do in other States, but voters can choose to vote absentee 
and by mail without any reason whatsoever.
    I am happy that my own State of New York just decided to 
adopt the second model--not that I prefer it over the first, 
but at least it is better than nothing--of no excuse absentee 
balloting. We joined 29 other States that offer no excuse 
absentee balloting and four States that provide permanent no 
excuse absentee balloting.
    Finally today, we will discuss how to give voters the tools 
to track their ballots once sent. If people can track a package 
when it arrives, surely the technology is there to track a 
ballot.
    It is an issue that we have had some experience, successful 
experience, in this committee. Working with Senators Bennett, 
Chambliss, Nelson, and others, we passed the Military and 
Overseas Voter Empowerment Act, known as the MOVE Act, as part 
of the National Defense Authorization last year. It ensures 
that all States permit military and overseas citizens and their 
dependents to register and vote by absentee.
    One of the most important aspects of that law, which passed 
with Congresswoman Davis's strong support in the House, is that 
it requires election jurisdictions to provide to all military 
and overseas voters free access to notification that their 
voted ballots have been received by the local Board of 
Elections. Congresswoman Davis has her own bill, which passed 
the House on the Suspension Calendar, H.R. 2510, which is aimed 
at providing that same free access notification to all absentee 
voters in the country. I look forward to learning more about 
this particular proposal, as well.
    I believe these reforms to be sensible, secure, and the 
right thing to provide voters. Vote by mail elections will help 
all eligible voters to register and vote in Federal elections, 
including disabled voters and their caretakers, Americans 
holding down two jobs who can't get away to vote, and just 
about anyone who can't get to the polls but wants to exercise 
their prized constitutional right.
    So after we hear from our two Members of Congress, we are 
going to be lucky to hear from State and local election 
officials who can relate their experiences with these programs. 
They have been on the ground in the areas of policy, law, 
legislation, and implementation of vote by mail programs. We 
can all benefit from their experience.
    Senator Roberts?

              OPENING STATEMENT OF SENATOR ROBERTS

    Senator Roberts. Well, thank you, Mr. Chairman. It is a 
privilege to be here to pinch hit or stand in for Bob Bennett.
    I might observe that in a unique test of observation by the 
media on Capitol Hill, many times, we have been mistaken for 
one another. This is somewhat unique in that Bob is six inches 
taller than I am and he, when a member or the Chairman of the 
Joint Commission on Economics and I was the Intelligence 
Committee Chairman, were being asked by media, Mr. Chairman, 
all the time different questions, they would ask me about the 
Fed and about the interest rate and about the economy, and I 
would say, well, we are going to take that up very quickly and 
if you will just get back to me, I can have something for you 
later. And Bob, when asked about an intelligence matter, would 
simply smile and say, ``Well, you know I can't say anything 
about that.''
    And so we have become sort of a, what, band of brothers in 
regards to the media, I guess, inquiries. That still has 
puzzled me, other than the fact that I think we both belong to 
the follicly challenged caucus. Perhaps that is the reason that 
one is mistaken for the other.
    It is a pleasure to be here with you. I have known the 
Chairman. We served together in the House and now serve in the 
Senate. The Chairman is known for his legislative prowess and 
his political acumen. I simply want to thank him for getting 
who I was in 2008 and I appreciate that very much.
    So at any rate, with Ron Wyden, Ron comes from Wichita, 
along with some other very famous person that we know at 1600 
Pennsylvania Avenue, and so I have known him for a long time 
and he serves on the Intelligence Committee. I think you are 
still serving there. And I appreciate his efforts. If there is 
one person who does reach out and tries to be bipartisan in 
regards to the challenges that we must face, it is Ron. And so, 
Ron, I really appreciate your friendship and your service.
    And Susan is a member of the sometimes powerful House 
Administration Committee, of which I was a member many, many 
years in the House----
    Chairman Schumer. It was always powerful when you were on 
it, Senator Roberts.
    Senator Roberts. It was always very chaotic and very 
controversial, but at least I think we got some things done, so 
thank you to the members. I am looking forward to the panel.
    The Constitution under Article I, Section 4, states the 
time, places, and manner of holding elections for Senators and 
Representatives shall be prescribed in each State by the 
legislature thereof. Although the Constitution does permit 
Congress to make laws that affect elections, it is clear that 
the Founders intended for the responsibility and administration 
of elections to remain within the States and accountable 
directly to their voters.
    Since 1995, my State of Kansas has permitted advance so-
called no excuse balloting for Kansans who fill out the 
appropriate application and meet the statutory requirements. 
There are some county--there is county flexibility due to cost 
and access and things of that nature, however. They may vote 
prior to Election Day either by mail or in person at a location 
approved by their County Election Office.
    Now, 27 other States have various forms of advance 
balloting, but it is important to remember that 22 don't. These 
States have chosen probably for different reasons, I suspect 
cost and other matters, not to initiate advance balloting. That 
choice must be respected, I think, by the Federal Government as 
well as by other States.
    And I understand that some advocate extending advance 
balloting to States that have not adopted advance balloting. 
Others highlight concerns that doing so opens the door to 
abuses such as fraud. For example, in Essex County, New 
Jersey--where else--there is an ongoing investigation of 
fraudulent absentee ballots in the 2007 Senate race and this is 
not the only example. We could go on and on.
    Worse yet, we must consider the possibility of coercion. 
The concept of the secret ballot is one of the cornerstones of 
democracy and we must exercise extreme caution with any form of 
legislation that could potentially or inadvertently undermine 
the secret ballot and open the door to intimidation of 
individuals when voting on candidates or questions before them 
on Election Day.
    I thank the Chairman again for calling this hearing. I look 
forward to the witnesses' testimony. Thank you very much, Mr. 
Chairman.
    Chairman Schumer. Thank you, Senator Roberts.
    And now we will hear from Senator Wyden.

 STATEMENT OF HON. RON WYDEN, A UNITED STATES SENATOR FROM THE 
                        STATE OF OREGON

    Senator Wyden. Thank you very much, Mr. Chairman. With your 
leave, let me just spare you the speechifying and maybe just 
highlight a few of my main concerns.
    I don't want to make this a bouquet-tossing contest, but I 
also especially appreciate the way you, Mr. Chairman, and 
Senator Roberts and Senator Bennett tackle these issues in a 
bipartisan way. I think both of my colleagues know that Senator 
Grassley and I, for example, have spent a full decade trying to 
eliminate secret holds here in the United States Senate, 
another effort to open up the political process to make 
Government more accountable.
    Senator Schumer, when I talked to him about this a decade 
ago, the very first question Senator Schumer asked me was, are 
you doing this in a bipartisan way, so Chairman Schumer, I am 
very appreciative of the fact that you have put a special focus 
on these issues that are so important to democracy to work in a 
bipartisan fashion, and it is obvious you are doing that again.
    And to my friend, Senator Roberts, my former Chairman on 
the Intelligence Committee, we have worked together often on so 
many issues, and to work with you and Senator Bennett, and he, 
of course, has been my partner on a number of economic issues, 
health, and others, this is exactly what we need more of in the 
United States Senate, and so I very much appreciate the way you 
all are tackling these issues.
    I am the first United States Senator to have been elected 
by mail. Suffice it to say, when you look at the 30-year 
history of what Oregon has done, what you see is that this 
empowers voters. They have almost three weeks to have a ballot 
in their hand to get more informed on the issues. It has 
increased turnout. It is cost effective. And on the central 
issue that colleagues have asked me about as they have looked 
at it, I am of the view that it reduces election fraud, and let 
me cut to the bottom line on this issue.
    We know that elections are contentious matters. People have 
passionate differences of opinion. The first point on this 
issue, in the history of our using vote by mail, and it goes 
back almost 30 years, and I mentioned this to my friend, 
Senator Roberts, not once has a Democratic candidate or a 
Republican candidate said that they lost their election by 
voter fraud using vote by mail. There has not been one instance 
of that.
    And in fact, to highlight how strongly we feel that this is 
bipartisan, at one point, I was one of a handful of Democrats 
who were for this idea. Republicans at that time thought it 
would favor them because they thought that their constituency 
would be more interested in this. Then the roles were reversed 
and now Oregonians have put it on the ballot because 
overwhelmingly this is a bipartisan approach.
    One of the reasons that it has not been something 
susceptible to fraud is the extensive checks that we have put 
in this, and our very fine Secretary of State will touch on 
this in a few moments. First, we require that people sign the 
ballot. Then we verify the signatures. And because you have 
close to a three-week process, you have plenty of time to see 
if a signature is verified. And we have very substantial 
penalties--it is a felony if you sign somebody else's name to 
the ballot.
    And Mr. Chairman, with your leave, I would like to put into 
the record an instance in Curry County where an elected 
official whose wife had back surgery and asked her husband to 
sign the ballot, he did it, they picked it up on verification 
and he went to jail for his conduct. So we have very 
substantial----
    Chairman Schumer. You are a tough folk in Oregon.
    Senator Wyden. We are tough folks, but we are very serious.
    Chairman Schumer. Without objection, that will go in the 
record.
    [The information of Senator Wyden submitted for the 
record:]
    Senator Wyden. We are very serious, and I just want my 
colleagues to know that we don't take a back seat to anybody on 
this question of ballot integrity. So we have 15 million 
ballots that have been cast by mail since we have used it and 
absolutely no evidence of systematic voter fraud, and our 
excellent Secretary of State will get into this in just a 
moment.
    Finally, Mr. Chairman, the package of bills that I have 
introduced includes a universal right to vote. We consider that 
fundamentally about access and fairness. No longer would there 
be arbitrary requirements that block voters from choosing to 
vote by mail. I want it understood that this wouldn't force 
anyone to vote by mail, nor does it require States to implement 
new voting systems. It, again, increases voter choice and voter 
options.
    Also, S. 3299 would eliminate arbitrary barriers that may 
prevent voters from exercising their rights in States that 
still have excuse requirements, and I note that the State I was 
born in, the State that Senator Roberts represents, was the 
first State to eliminate absentee ballot restrictions.
    Then I have also introduced S. 3300, the Vote by Mail Act 
of 2010, that would create a model grant program to help States 
or smaller jurisdictions transition to vote by mail systems. 
And one of the reasons why I think, colleagues, we also ought 
to look at these small grant programs is it seems that every 
four years, when we have jurisdictions around the country 
having substantial problems in protecting the franchise and 
empowering the voters, we end up spending more Federal money on 
broken systems. So it would make more sense, it seems to me, to 
pick up on a model that has strong bipartisan support, that has 
worked, that is cost effective, that is efficient, that has not 
in any way promoted fraud, and quite the opposite, has 
sanctioned any instances of tampering with a ballot 
aggressively. I think it would be in the country's interest to 
follow the Oregon model.
    I will plead guilty, colleagues, to being proud of my 
State. I think good government is in the Oregon chromosomes. It 
is hwy we participate so extensively in government. It is why 
people show up at my town hall meets in every county, every 
year. This is another way to open up the doors of democracy and 
to do it in a bipartisan way.
    So I thank colleagues for the chance to come, to you, 
Chairman Schumer, for particularly showing that you can be 
passionate about issues like this and do it in a bipartisan 
way.
    [The prepared statement of Senator Wyden inserted into the 
record]
    Chairman Schumer. Thank you, Senator Wyden, and we thank 
you for your leadership on this issue.
    Congresswoman Davis?

  STATEMENT OF HON. SUSAN DAVIS, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Ms. Davis. Thank you very much. Chairman Schumer and 
Senator Roberts, it is an honor to be here and to be here with 
Senator Wyden, a true leader on mail ballot issues, to testify 
about the rising use of absentee voting and improving the 
process. I will be as brief as I can to allow for your panel of 
experts, because truly, these are election officials whose 
experience offers us the greatest value.
    My interest in bettering our elections goes back to my 
service as President of the League of Women Voters of San 
Diego. Historically, the Federal Government has opened the 
doors to those who have been shut out of the voting process, 
whether intentionally or unintentionally, and each time those 
doors open wider, our country has been the better for it.
    But our work is not done. The next step is to give hard-
working Americans with busy lives the best chance to vote no 
matter what comes up on Election Day. I vote at polls whenever 
I can because I really want to. Many Americans feel the same, 
and I am not proposing that we take away that option. But we 
shouldn't consider a person any less patriotic for wanting to 
do his or her civic duty at the kitchen table.
    The reality today is that ever-increasing numbers of voters 
choose to vote by mail because people pursuing the American 
dream are getting up earlier, commuting longer distances in 
more traffic, and they savor precious family time. They want to 
participate in democracy, but are uncertain whether they will 
make it to the polls between their work and family obligations.
    These ballots today are longer and they are often filled 
with complex initiatives and some voters don't like to feel 
rushed at the polls. An absentee voter can choose whether to 
turn a ballot in right away or wait to hear everything the 
campaigns have to say.
    Some say early in-person voting is an alternative to voting 
by mail. While I fully support this opportunity, I would 
disagree with that. Like Election Day, early voting still 
involves lines and limited hours and administrative burdens. 
Mail simply has a broader reach.
    In California, we have no excuse absentee voting, meaning 
that anyone can vote by mail for any reason. I took the right 
to vote by absentee for granted until 2004, when a nurse from 
an excuse State told me she could not vote for President 
because her shift overlapping with polling hours and work 
wasn't an acceptable excuse for an absentee ballot. Since she 
would not abandon her patients, well, she did not vote. Her 
story compelled me to take action.
    The fact that some 21 States still require excuses to vote 
by mail is a problem on three levels. First, voters in excuse 
States simply do not have as great an opportunity to vote as 
their counterparts in no excuse States. This creates an unequal 
playing field when we are all voting for the same President and 
the same Congress.
    Second, the excuse requirements are arbitrary impediments 
and they do not increase security. For example, in Michigan, 
you can vote absentee if you are over 60. In Mississippi, you 
have to be over 65. And in Georgia, you have to be over 75. In 
Delaware, you need to collect and pay for a notary signature to 
prove that you are on vacation or that you are a student. In 
Tennessee, sick voters need a note directly from their doctor 
to the county clerk. Even work doesn't count as a valid excuse 
in many States, and in some, only certain kinds of work do.
    And no State has a special exemption for parents of young 
children. I am all for setting an example by taking kids to the 
polls when they can, but any parent knows it is not always 
practical to stand in line with a couple of toddlers and then 
try to concentrate on a long ballot.
    And the third reason absentee excuses are a problem is they 
can violate our privacy for no good reason. Some people say a 
voter's privacy is at risk voting from home. There is not much 
evidence of that, however, and most people talk politics with 
their family anyhow. What is clear is the threat to privacy 
States pose when they request unnecessary information just to 
vote.
    For example, in Virginia, you must state where you will be 
vacationing to get an absentee ballot. If you have a religious 
obligation, you have to explain that. If you are sick, you must 
list the nature of your disability or illness. If you are 
caring for someone else, you have to list that person's 
illness. And my favorite one, if you are pregnant, you must 
disclose that to the State. All of this information becomes 
public record and it is never verified to prevent fraud. But if 
you forget to fill out any part of it, sorry, you can't vote.
    The good news is, we can fix all of these problems by 
passing the Universal Right to Vote by Mail Act. This bill 
merely expands a process every State already has and it clearly 
falls under Congress's constitutional authority to regulate the 
place, time, and manner of Federal elections.
    In addition, the Congressional Budget Office scores it at 
zero and finds it is not an unfunded mandate because it is a 
civil rights bill.
    So before I close, I just want to urge the committee to 
consider one more bill, as well, H.R. 2510, the Track Act, a 
bill we recently passed in the House and is awaiting action 
here in the Senate. This bill, which I co-authored with Kevin 
McCarthy, also on the Administration Committee, is modeled on a 
successful law in California and would expand on the tracking 
language in the MOVE bill. You are familiar with that. It would 
provide State grants to set up absentee ballot tracking systems 
so voters can know whether their absentee ballot has been sent, 
received by the Elections Office, and has been counted, all 
three of those steps, which are very important.
    I strongly believe this Congress must expand and improve 
absentee voting for all eligible voters and extend a bedrock 
promise of our democracy, a vote for every citizen.
    I want to thank you very much, Mr. Chairman, for holding 
this hearing. I want to thank you for your help and support. 
And I certainly want to thank your staff, as well, that were 
tremendously helpful to us.
    I seek permission to submit for the hearing record a letter 
from the Michigan Association of County Clerks.
    Chairman Schumer. Without objection.
    [The information of Ms. Davis submitted for the record:]
    Ms. Davis. Thank you very much.
    [The prepared statement of Ms. Davis submitted for the 
record:]
    Chairman Schumer. One quick question for Senator Wyden. 
When did Oregon implement its universal by mail voting, and how 
was the education and transition process? I am sure people 
would want to know that.
    Senator Roberts. Wasn't that with Lewis and Clark when 
they----
    [Laughter.]
    Senator Roberts. Lewis was for it and Clark was against it, 
as I recall.
    Senator Wyden. And then when they saw how well it worked, 
they both came on board.
    Senator Roberts. I see.
    Senator Wyden. Mr. Chairman, I would also like to submit 
for the record, we have put together--our State officials put 
together a history of vote by mail.
    [The information of Senator Wyden submitted for the record]
    Chairman Schumer. Oh, good.
    Senator Wyden. But essentially, there is a 30-year 
chronology dating back from 1981, where we started testing vote 
by mail for local elections, the chronology. We made vote by 
mail permanent in 1987. The majority of counties began to use 
it for local elections, as I noted. We held the Statewide 
special election in 1995 and 1996. In January of 1996, when I 
was chosen Oregon's first new United States Senator in almost 
30 years, we had 66 percent turnout, Mr. Chairman.
    Chairman Schumer. Wow.
    Senator Wyden. This was in the dead of winter. It was 
unbelievably cold. And colleagues, I don't remember it----
    Chairman Schumer. That was because of the quality of the 
candidate.
    Senator Wyden. Well, as all of us know, Senator Smith was 
an extraordinary elected official, as well, and he and I worked 
very closely together. But I note that at that time, when 66 
percent turned out, people compared it to the previous Senate 
special election. We had one, which I believe was in Texas, 
that had turnout somewhere in the 20 percent range. So you get 
a sense of what the extraordinary effect this has had in terms 
of increasing voter turnout. Make this chronology a part of the 
record----
    Chairman Schumer. Without objection.
    Senator Wyden[ continuing]. But we have a 30-year 
successful history, and that is why I feel comfortable about 
coming before you and arguing that it ought to be expanded, is 
we have had a chance to work through the kinks.
    Particularly just one last point, Mr. Chairman. You have 
been very gracious on time. When you look at this fraud issue, 
if a ballot is fraudulent, under the Oregon system, it never 
gets counted because we have used that three-week period to 
essentially check the envelopes, identify the problems, fix the 
errors, investigate any questionable ballots, as opposed to 
what happens when you have the traditional process of the 
polling place. The vote has already been counted and then you 
are playing catch-up ball to deal with retrieval issues as 
opposed to what we think has been successful in terms of 
getting at these questionable activities up front.
    Chairman Schumer. And to Congresswoman Davis, California's 
rate of vote by mail is extraordinarily high, 44 percent. Why 
do you think that is, compared to, say, other States that have 
the same law, basically the same law in effect?
    Ms. Davis. Well, one thing, they have made it permanent 
voting so that people don't have to actually request an 
absentee ballot every time there is an election. They can--that 
is basically a permanent absentee voter and I think that makes 
a large difference, and people have found that it works for 
them.
    Chairman Schumer. Senator Roberts? Thank you both.
    Senator Roberts. With a highly mobile society, more 
especially with California, how does that work? It is a 
permanent situation by address, I am assuming.
    Ms. Davis. Yes. If people move, then of course they have to 
re-register at that address.
    Senator Roberts. Sure. But I would guess, what, 20 percent 
at least in California----
    Ms. Davis. Are moving around?
    Chairman Schumer. Are moving to Kansas.
    [Laughter.]
    Senator Roberts. I don't think so.
    Ms. Davis. A lot of them do move within the State, but even 
if they move down the street----
    Senator Roberts. We have very strict immigration laws.
    [Laughter.]
    Ms. Davis. But the other thing that has been mentioned is 
the signature is really the key in California, as well. I have 
been at the registrar when they are checking all of that and 
they do. They go through every signature----
    Senator Roberts. I don't think there is a better 
salesperson for this than you have represented yourself before 
the committee. If you have been talking to your colleagues in 
regards to the 22 States that do not have this, it would seem 
to me you have a very convincing argument.
    I think I can say the same thing about Kansas. I am not too 
eager to superimpose by federal fiat upon the 22 who do not. 
You may think they live in the Dark Ages or whatever it is that 
one may think, but being the sales person that you are, of 
course, you have other duties to perform. Have you talked to 
some of your colleagues in some of the States that you were 
talking about in regards to the need for voting by mail?
    Ms. Davis. I certainly have, and you are absolutely right 
that people believe that this is in the venue of the State. I 
think what we have to point out to them is that, actually, 
traditionally, while the States have run elections, no court 
has really said that the Tenth Amendment trumps Article I, 
Section 4, which basically says that the Congress can determine 
the place and time. We have HAVA. We have Motor Voter. We have 
done a number of things to try and provide some 
standardization.
    So I have given them those arguments and I think that they 
do tend to fall back on the State argument. But when they have 
an opportunity to talk to their registrars and their county 
people, I think that they come around often with the feeling 
that this doesn't make sense anymore. It may have at one time.
    Senator Roberts. I am a veteran of the Motor Voter 
meaningful dialogue that we had in the House Administration 
Committee and had three amendments. One, you had to be a 
citizen; two, that it was an unfunded mandate and we should pay 
for it; and then, third--oh, what the heck was the third one? 
But at any rate, another common sense amendment. They all went 
down by a party line vote.
    I am trying to think of the Washington Representative that 
was such a leader in that--Congressman Swift, Al Swift. And 
then ten years later, I went back over all of the evidence that 
he indicated State by State in terms of what he thought would 
represent an increased voter turnout. As it turned out, it 
didn't affect it much one way or the other. What affected it 
was the candidates and the timing and everything that involves 
a political year. So I still have some reservations about that. 
But at any rate----
    Ms. Davis. I think one of the things you might look at is 
for all of those States that have made this decision and moved 
forward, none of them have changed and gone back.
    Senator Roberts. I understand that. It would be very 
difficult to do that under the circumstances. I think, 
politically--the third one was, by the way, if the State had a 
more strict law enforcement requirement than the bill actually 
provided, that that would prevail. And it seemed to me those 
three things were very reasonable.
    Mr. Chairman, I did not mean to get into a renewed debate 
on Motor Voter, but anyway, that struck a chord. Thank you very 
much.
    Ms. Davis. Thank you.
    Chairman Schumer. I thank both of our witnesses for being 
here.
    Senator Wyden. Thank you.
    Chairman Schumer. And now we will call the next panel to 
come forward, who are Kate Brown, the Secretary of State of 
Oregon, recommended by Senator Wyden, John Fortier from the 
AEI, and Rokey Suleman, who is from the Board of Elections in 
the District of Columbia. I will read a brief biography of each 
and then we will ask each witness to submit their entire 
statement to the record and speak for five minutes.
    Ms. Kate Brown currently serves as the Secretary of State 
of Oregon, a position she has held since 2008. She was elected 
to Oregon's House of Representatives in 1991, served there 
until 1997 when she was elected to the Oregon Senate in 2004. 
She became the first woman elected Majority Leader in the 
Oregon Senate, served there for five years, earned her law 
degree from Northwestern School of Law at Lewis and Clark 
College in Portland, Oregon. Welcome. And one of your Statewide 
colleagues, John Kroger, worked for me for a number of years.
    John C. Fortier is a research fellow at the American 
Enterprise Institute as the principal contributor to the 
election reform project done in conjunction with the Brookings 
Institute, a member of the Committee to Modernize Voter 
Registration, and the author of Absentee and Early Voting: 
Trends, Promises, and Perils. He taught political science at 
the University of Pennsylvania, University of Delaware, Boston 
College, and Harvard. He earned his undergraduate degree from 
Georgetown, Ph.D. from Boston College.
    And Mr. Rokey Suleman currently serves as the Executive 
Director for the Board of Elections and Ethics in the District 
of Columbia, where he is responsible for the maintenance of 
voter records and election preparation. Before joining the D.C. 
Board, he served in Fairfax County, Virginia, as the General 
Registrar in the Office of Elections, as well as in Warren, 
Ohio, as the Deputy Director of the Trumball County Board of 
Elections.
    You are all welcome. Secretary Brown, your entire statement 
is read in the record and you may begin.

  STATEMENT OF KATE BROWN, OREGON SECRETARY OF STATE, SALEM, 
                             OREGON

    Ms. Brown. Thank you, Mr. Chair and committee members. For 
the record, I am Kate Brown, Oregon's Secretary of State, and 
thank you for inviting me here to testify today. I really 
appreciate both Senator Wyden and Congresswoman Davis's 
leadership in attempting to provide Americans with universal 
access to vote by mail.
    You have my written testimony in front of you. I would like 
to highlight a few of those points.
    Oregon's 30-year experience with vote by mail has been a 
resounding success. Vote by mail enhances turnout, is cost 
effective, and secures the integrity of the ballot. We know 
that Oregonians like vote by mail because we can measure the 
effects it has had on turnout over the past few election 
cycles. Oregon has been in the top ten of States in voter 
turnout amongst registered voters for the last two Presidential 
elections. It is the only State in the top ten that does not 
have same-day voter registration, another subject for another 
day.
    It is easy to understand why. With vote by mail, we make it 
easier, more accessible, and more convenient for Oregonians to 
cast an informed ballot. It is easier for folks living in rural 
Oregon, miles away from the Elections Office, to drop their 
ballot in a mailbox. It is accessible for people with 
disabilities to vote independently in the privacy of their own 
homes. And it is convenient for busy families, as Congresswoman 
Davis mentioned.
    Vote by mail is cost effective. The last general election 
at a polling place was in 1998. It cost $1.81 per voter. Our 
special election in January of 2010 cost $1.05 per voter, not 
including inflation.
    We continue to add efficiencies, as well. Last legislative 
session, we passed a bill which allows counties to process the 
ballots before Election Day. As you all know, voters and 
elected officials want results immediately in this day and age, 
and in our last Statewide election, we released more than 
three-quarters of the results within half-an-hour of the voting 
deadline.
    In addition, as Senator Wyden mentioned, vote by mail is 
secure. To combat any attempts at fraud, we have put a number 
of security measures in place to make vote by mail as secure as 
traditional polling place systems. For example, to ensure the 
integrity of each ballot, we check every single signature, and 
I know this because it happened to me. One election, I got a 
call saying my signature didn't match my signature on the voter 
registration card and would I come down to the Elections Office 
to verify my ballot. Of course, I did.
    We are also using tracking measures by including a bar code 
on every single envelope so we can track a given ballot while 
it is in the custody of Elections. And by November of 2010, 
voters will be able to track their ballots and confirm that 
they have been received by elections officials, just like we 
can track our purchases on eBay.
    As Senator Wyden mentioned, the penalties for voter fraud 
are severe. I have another case in Josephine County where a man 
forged the name of his younger brother to register to vote. His 
younger brother was a citizen. We caught him. He was discovered 
when his brother was summoned for jury duty and the county 
learned that his brother was only 14 years old. He was 
convicted of four felonies and deported, and now he can never 
become a citizen of the United States.
    Finally, given the length of time of the election, as 
Senator Wyden mentioned, with the ballots going out about 18 
days ahead of time, county clerks and elections officials have 
ample opportunity to resolve unanticipated problems.
    It has truly been a collaborative process and we work 
closely with our partners at the United States Postal Service.
    Senator Schumer, I would let you know that Secretary Reed 
has a letter detailing the experience in the State of 
Washington and he can tell you why Pierce County is not all 
vote by mail. But I believe it is the only county in Washington 
that doesn't have vote by mail.
    In sum, we are really proud of our system in Oregon and we 
are very encouraged by the willingness of Congress and this 
committee to discuss its merits. However, as excited as I am 
about the prospect of vote by mail going national, I know that 
I have to temper my excitement in light of the long path we 
took to fully implement the system, and that was a full 30 
years.
    Senator Wyden's approach is creative and a common sense way 
to give all voters across the country access to the convenience 
of voting by mail in a very ``take it easy'' approach.
    I would like to thank the members of the committee for 
having me here today. I heartily encourage you to support the 
three bills that the good Senator Wyden has introduced. And if 
Oregon's experience is any indication, universal access to vote 
by mail has the potential to affect our country's elections for 
the better. Thank you.
    [The prepared statement of Ms. Brown follows:]
    Chairman Schumer. Thank you, Secretary Brown.
    Mr. Fortier?

 STATEMENT OF JOHN FORTIER, THE AMERICAN ENTERPRISE INSTITUTE, 
                        WASHINGTON, D.C.

    Mr. Fortier. Thank you, Chairman Schumer and Senator 
Roberts. I commend you on having this hearing today because we 
have had a silent revolution in voting that has taken place 
over the last 30 years. Thirty years ago, we could look at the 
States and there would be some similarities. Most States would 
have about five percent people voting by absentee. You would 
have those people with reasons. They would be overseas, they 
would be ill, or they would be out of town on business or some 
personal business.
    And starting in the late 1970s and early 1980s, a number of 
States started to change this, and we have seen a tremendous 
rise in voting by mail, but I also want to highlight a 
tremendous rise in voting early in person. Both of these 
phenomena have added together, add up to about a third of 
voters voting before Election Day, a tremendous change which 
has really been State by State.
    Some States, Oregon, 100 percent, Washington State, nearly 
there, are voting by mail. Some States--New York is now moving 
in this direction but has traditionally had very low rates of 
absentee voting. Many of the Northeast States still have those 
rates of five percent or less.
    Some States have moved very heavily to voting early in 
person but do not do much voting absentee. Texas and Tennessee 
were the leaders. Georgia and North Carolina also fall into 
this category. And then there are a number of States who do a 
lot of both.
    So I note to you the great variety that is out there in the 
States, and I think that is some caution to what Congress 
should weigh in on, whether Congress should put early voting in 
person, or early voting by mail above other forms of voting.
    Now, if I were advising you as a State, I do have some 
reservations about moving towards voting by mail. Of course, it 
is needed for a certain percentage of voters who cannot make it 
to the polls, but that does not mean that you could not go to a 
certain form of convenience voting, and that is voting early in 
person. And the reason I would recommend that method of voting 
rather than voting by mail or expanding voting by mail in a 
significant way is several reasons.
    One, it is not a secret ballot, a vote by mail. It is 
needed by some people, but once that ballot has left the 
polling place, it is in the hands of someone. It is potentially 
out there for others to see. And while most of us do not have 
pressures on us as to how to vote, there are some that do. 
There are vulnerable voters. There are people with prying 
spouses or bullying employers or who face a certain sort of 
peer pressure being part of a group, and the fact that the 
ballot is out there makes it very hard for those people to 
resist those pressures. If you go to a polling place, you may 
have all the pressures in the world, but ultimately, you pull 
the curtain behind you and you vote as you like no matter what 
your friends, spouse, or peers have told you to do.
    There are also problems with the chain of custody. 
Certainly, an absentee ballot or a mail ballot leaves the 
polling place. It is sent. It is requested. It has to be turned 
back. And the problems that we have found have been in the 
fraud area. While I don't think we can prove in any way that 
they are extensive, they certainly are to do with people 
intercepting ballots, people requesting ballots for people who 
are not eligible voters or are not where they are supposed to 
be. There is an extra opportunity for fraud that does not exist 
at the polling place.
    I also think there are some problems with the way ballots 
are handled, and I want to accept Oregon for this. In many 
ways, I am a critic of voting by mail, but I think Oregon, when 
it does voting by mail, does it very well. That is not the case 
all around the country. There are many States who do not take 
the same care of checking signatures, of ensuring that there is 
contact with voters if there are problems.
    And I point to the Minnesota example, where Minnesota, a 
contentious recent election, we had problems that both sides 
argued about, about ballots being not counted that should have 
been counted or ballots that were counted that didn't meet the 
requirements, and ultimately also some problems potentially of 
votes being cast with errors in them which are not able to be 
corrected on the ballot itself, whereas at a polling place, 
there are error checking mechanisms in a number of voting 
systems.
    You know, my caution on moving towards requiring voting by 
mail everywhere is that, look, we have a very good other 
system, voting in person early, and we wouldn't--I am going to 
speak for Secretary Brown here. I am not sure she would be 
excited if we passed a bill and said that we should require 
there be early voting in person everywhere all the time or in 
an extensive way. I don't think we should impose one or the 
other. I think the States are making decisions. And I will 
note, I think that the statistics show that we are moving more 
in the direction of voting early in person. The recent rise in 
that has been greater than the other.
    My last point is that just because I don't think we should 
ask States to--we shouldn't force States to offer absentee 
ballots to everyone, we should consider making some of the 
improvements that are dealing with the tracking, with the 
signatures and other things that Oregon and other States do 
well.
    [The prepared statement of Mr. Fortier inserted into the 
record]
    Chairman Schumer. Thank you, Mr. Fortier. You hit the nail 
on the head exactly at five minutes.
    So we now go to Mr. Suleman.

  STATEMENT OF ROKEY W. SULEMAN II, EXECUTIVE DIRECTOR, D.C. 
        BOARD OF ELECTIONS AND ETHICS, WASHINGTON, D.C.

    Mr. Suleman. Thank you, Chairman Schumer and Senator 
Roberts. Universal access to an absentee ballot is something 
that should be available to every U.S. citizen.
    I have been an election official in a State with universal 
access to an absentee ballot--that would be Ohio, an official 
in a State that severely restricts absentee ballot access--that 
would be Virginia, and am currently the Chief Election Official 
in the District of Columbia, a jurisdiction that is now making 
the transition from excuse-based absentee to no excuse absentee 
voting. I can speak with firsthand experience to the 
administrative difficulty that results from restricting ballot 
access through the mail.
    Demands on the lives of voters have grown as our country 
has grown. We owe it to our citizens to give them as much 
access to the ballot as they request. No fault absentee voting 
does just that in a place that is convenient, their home.
    Some argue that a vote by mail system erodes a community's 
sense of civic duty, that a ballot received through the mail is 
equal to junk mail received on a daily basis. I disagree. I 
believe that voting by mail gives families as much of an 
opportunity, if not more so, to educate their children about 
voting. Not every parent has the luxury to have their children 
tag along to the polls with them on Election Day. With vote by 
mail, families can sit around the kitchen table and discuss the 
issues and the candidates.
    Virginia places significant restrictions on access to an 
absentee ballot through the mail. A person must meet one of 
numerous requirements in order to vote absentee either in 
person or via the mail. A voter must check a box on a form and 
also give supporting information for their reason. For example, 
a voter must check ``personal business'' or ``vacation'' and 
then list the place that they are visiting. Failure to list the 
location results in a mandatory denial of that application.
    Medical reasons for requesting an absentee ballot through 
the mail also require supporting information. If a person does 
not list the nature of their illness on the application, the 
application must be denied. The medical reason to vote absentee 
may be very personal and subject the voter to public 
embarrassment. Absentee applications are records available to 
inspection by the public. Although there is some thought that 
the Health Insurance Portability and Accountability Act of 
1996, HIPAA, may apply, election officials have received no 
guidance to how to balance the right to privacy against the 
freedom of information regarding these documents. We face the 
prospect of serious litigation in the future if these 
requirements are still in place.
    Requiring an excuse to vote absentee also places a 
significant administrative burden on local election officials. 
The denial rate in my office in Fairfax, Virginia, for absentee 
applications was very high in 2008. A significant number of 
voters check a reason but do not supply the supporting 
information. My staff has to review each application for 
completeness. Failure to properly complete the form requires a 
notice to the voter informing them of the deficiency and 
supplying a new application. This is all done by hand.
    During the November 2008 general election season, my former 
office denied thousands of applications because of these simple 
failures to supply burdensome information. There were several 
file drawers filled with applications that were denied. Some 
voters were denied multiple times before submitting a properly 
completed application. This took thousands of dollars out of 
our budget for the increase in man hours, postage, and supplies 
needed to process these applications. This is a tremendous 
waste of valuable tax dollars. No excuse access to a ballot 
through the mail would have saved that office thousands of 
dollars in processing and overtime costs.
    Some opponents of no excuse absentee voting by mail claim a 
person should be able to fill out a form properly and failure 
to do so should disqualify their vote. I have had to deny 
applications to former U.S. Congressmen and current U.S. 
Supreme Court Justices because of failure to supply supporting 
information. If these educated folks make mistakes, imagine the 
mistakes made by a 90-year-old voter that has difficulty 
reading and writing.
    The transition from excuse-based absentee voting to no 
excuse absentee voting in Ohio caused no problems or increased 
fraud. As a matter of fact, in today's Cleveland Plain Dealer, 
they indicate that the majority of votes in Cuyahoga County in 
yesterday's primary came in through the mail.
    It is my professional opinion that increased access to 
ballots through the mail does not lead to an increase in voter 
fraud. The numbers I have seen just do not support the 
assertion. What universal access through the mail does is give 
a voter another option in casting a ballot, an option that more 
and more voters across the country desire.
    There are other benefits to vote by mail. Election 
officials will also be able to take advantage of technology to 
let a voter know where their ballot is. By placing bar codes on 
both the original and return envelope, my office in the 
District will have the ability to tell every absentee voter the 
status of their ballot on our website up to the point the 
ballot is on the vehicle of their postal carrier. While we are 
implementing this technology to comply with the MOVE Act, this 
process will be easily extended to all vote by mail voters at 
nearly no cost. This process is expected to significantly 
reduce the number of ``where is my ballot'' calls to the 
office, which in turn will reduce staffing costs. The 
combination of convenience and technology will be a tremendous 
benefit for the voters in the District.
    It is my belief the District will start to see such a shift 
to early and no fault absentee voting that we will be able to 
combine precincts. This will provide my office with thousands 
of dollars in savings from poll worker reduction, reduced 
training costs, fewer polling location rental fees, and less 
overtime.
    No fault absentee voting is a concept whose time has 
arrived. Voters like the ease of use. Election officials as 
well as the funding authorities appreciate savings realized in 
the elimination of polling locations. This is a good government 
bill. This bill will save taxpayer money and provide greater 
access to our government. It is a bill whose time has arrived. 
Thank you very much.
    [The prepared statement of Mr. Suleman follows:]
    Chairman Schumer. Thank you. And again, I want to thank our 
witnesses for observing the time limit.
    The first question I have is for Secretary Brown and Mr. 
Suleman in particular, education, and particularly the 
experience with Oregon. When Senator Wyden rehearsed the 
history, it was sort of gradual. It started in local elections. 
I guess it wasn't mandatory. You could go to the polls, et 
cetera. How long did it take for Oregon voters to become 
familiar with the process? How do you educate new voters? You 
have an influx of many citizens from other States who come to 
Oregon. Tell us a little bit about that.
    Ms. Brown. Mr. Chair, thank you for the question. As 
Senator Wyden suggested, the process to moving to vote by mail 
in Oregon was gradual. A Republican Secretary of State passed 
legislation in 1981 to allow for local elections, and it wasn't 
until the voter initiative passed in 1998 that we went to full 
vote by mail. That being said, basically, no one under the age 
of 30 has ever voted in a polling place in Oregon, so it 
certainly has been a gradual transition.
    I think the beauty of Senator Wyden's bill is it doesn't 
force the States to do vote by mail. It allows the voters to 
have the choice of voting by mail, and it is really an 
expansion. My understanding is that all the States have access 
to some type of absentee voting. So it really just expands the 
systems that the States already have in place.
    In terms of education, I am in the schools on a regular 
basis working to educate young Oregonians that we vote by mail 
and how we vote by mail. And we, frankly, have used our Federal 
Help America Vote Act dollars to educate voters about the 
voting process in Oregon.
    Chairman Schumer. Mr. Suleman, you mentioned Ohio. That was 
very interesting, that in the primary, a majority of votes were 
cast by mail in Cuyahoga County. How is the process going there 
with educating voters, voters adapting, et cetera?
    Mr. Suleman. The election offices in Cuyahoga County and 
Franklin County, Ohio, the two largest jurisdictions in Ohio, 
are very proactive and they send out applications to all of the 
voters to fill out and submit ballots and it has worked very 
well for them.
    My experience in my county in Ohio was we did a limited 
approach because we didn't have the local resources to send out 
applications to all of our voters. However, we knew that there 
was going to be difficulty with the applications, so we sent 
out--inside the application itself, we sent a form that 
described actually how to fill out the application so when the 
ballot came back there weren't any mistakes on the ballot so we 
could pass that forward.
    Each county has taken it upon themselves to educate the 
voters a little differently, but it has proven to be a great 
success.
    Chairman Schumer. And it is working?
    Mr. Suleman. It is working.
    Chairman Schumer. Okay. Secretary Brown, Mr. Fortier 
mentioned some of the complaints with this process. We have 
talked about the fraud, so I am going to leave Senator Wyden's 
comments on that in Oregon. But what about this idea that you 
lose some of your privacy from, I think his words were, prying 
spouses and employers who were trying to pressure people, or 
something like that. Do you get many complaints about that from 
Oregon voters?
    Ms. Brown. Mr. Chair, actually, we have had no complaints 
regarding coercion amongst spouses or partners in terms of 
coercion around the ballot, and we have actually done some 
research. The prior administration reviewed divorce petitions 
looking for allegations regarding coercion between spouses----
    Chairman Schumer. No divorces because of election 
differences?
    Ms. Brown. Correct. Correct. But the other thing I would 
add, Mr. Chair, is that----
    Chairman Schumer. It would be a pretty fragile marriage.
    [Laughter.]
    Ms. Brown. I have been very involved in the domestic 
violence community in my work in the legislature and I have 
never heard any complaints about this particular issue. So we--
--
    Chairman Schumer. What about with employers?
    Ms. Brown. Uh----
    Chairman Schumer. No, but employers would say, hey, I want 
you to vote Republican or Democrat and let us see your ballot.
    Ms. Brown. Mr. Chair, we have not heard any complaints 
about that. The legislature recently passed legislation in 
Oregon regarding, shall we say, meetings with employers that 
doesn't require employees to attend meetings. But no, I haven't 
had any complaints regarding employers forcing them to turn in 
the ballot.
    Chairman Schumer. Mr. Fortier, when you brought these up, 
is that speculative, hypothetical, or do you know of instances 
and can you mention a few to us?
    Mr. Fortier. Well, if I could just turn back in a way to 
the history, we actually had two reform movements, one right 
before the other, a reform movement at the end of the 19th 
century which put in the privacy of the ballot, the Australian 
ballot, and shortly thereafter, we had a reform that States 
started introducing absentee ballots. And some of the reasons 
for these requirements to go to a notary or provide a reason to 
vote absentee were because State Constitutions had enshrined 
the idea of privacy of the ballot and they wanted to balance 
these things.
    I am not advocating going back to a notary public, which I 
will note actually I did have to go to the first time I voted 
absentee, but you can see the reason for wanting to do so, that 
you go to a notary public, you show a blank ballot, you then 
are standing over there----
    Chairman Schumer. But any specific instances here?
    Mr. Fortier. Well, I mean, the reasons at the time, I will 
just say, of course, were worse than we would expect today with 
political machines which had walked into the ballot box with a 
color-coded ballot. You knew how you voted.
    I just think you are unlikely to find the subtly pressured 
voter or the voter who is under some pressure to come forward 
and say, look, I have these problems. They are vulnerable 
voters who potentially have someone giving them a hard time and 
might actually be able to see the ballot. I mean, certainly you 
can pay someone to see their ballot and turn it in, as well. It 
is not prohibited, or there is no way to ultimately get around 
that.
    I applaud Oregon for doing lots of things to stop that, and 
I don't think we should get rid of absentee ballots. We need 
them for some people. But in many ways, the polling places 
provide these protections that that sort of voting doesn't. And 
when a State like Texas or Tennessee wants to do a lot of 
convenience voting, a lot of voting early at polling places and 
say voting by mail is for only people who really need it, I 
think that is a good choice for those States to make.
    Chairman Schumer. Okay. And one final question for all 
three witnesses. Could some States' motivation here be that 
they don't want some people to vote or certain people to vote 
or make it more difficult? Is it that States that had 
traditionally denied voting rights to certain groups have 
tougher laws still to this day for any particular reason? Any 
of the panel on that. Or is that just gone, thankfully?
    Mr. Suleman. No. Quite honestly, in my professional 
opinion, that is the reason why the extreme absentee 
restriction to vote by mail exists in Virginia. I believe that 
they just do not want to open up access to the ballot to folks.
    Chairman Schumer. Mr. Fortier, you disagree with that?
    Mr. Fortier. Yes, I do. I mean, I think most of the States 
that still have these restrictions are actually in the 
Northeast, so some of those historical reasons may not be quite 
there. And, look, many of these reasons, we may want to revisit 
them at a State level and say, well, maybe this particular 
provision for providing a reason isn't what we want, or maybe 
we may need to make it easier. But I am not sure that the main 
reason is to keep turnout down.
    We didn't really talk about turnout, and I think there are 
some real problems with the claim that voting by mail increases 
turnout. Most academic research has actually shown that it does 
not. There are some contradictory studies, but there are 
certainly a number of studies that show a negative result. So I 
think the consensus is that it doesn't increase turnout by 
itself, nor does voting early in person. It is convenient. 
There are some benefits to it. But it is not something that is 
an automatic turnout increaser.
    Chairman Schumer. Thank you all.
    Senator Roberts?
    Senator Roberts. Well, thank you all. I truly appreciate 
your taking the time. I know you are very busy and it has been 
very interesting.
    We had a hearing on voter registration issues last March 
and one of the witnesses at that hearing submitted a study 
showing turnout increased nationwide over a period, I think 
that was highlighted by Ms. Brown when she said increased six 
percent in your State in the last three Presidential elections, 
and then I think there were similar numbers, too, in other 
States that had a similar system.
    But according to the Center for the Study of the American 
Electorate--I don't know who that is, by the way, but it sounds 
pretty good--average turnout nationwide for 2000, 2004, and 
2008 Presidential elections was 59.26, almost 60 percent, while 
average turnout for 1988, 1992, and 1996--it occurs to me that 
is when I ran--was 54.3 percent, about five percent below, 
actually 4.96. So the turnout increase over that period was 
pretty close to the national average.
    Do you have any comments on that, Ms. Brown, and also to 
Mr. Fortier?
    Ms. Brown. Mr. Chair, Senator Roberts, what I can relay to 
you is that Oregon's turnout amongst registered voters has been 
in the top ten in the nation during the past couple of 
Presidentials. In terms of non-registered voters, we are, 
frankly, in the middle of the pack, and that is why we moved 
to--in March, we moved to an online voter registration system. 
We used our Federal Help America Vote Act dollars to move to an 
online system to make it easier and more accessible for 
Oregonians to register online if they have a State ID or 
driver's license. So we are really working hard on the 
registration end.
    Senator Roberts. Mr. Fortier?
    Mr. Fortier. I will just say, I want to commend Oregon 
because Oregon does have high voter turnout, but it has had 
high voter turnout for quite a long time, before it had all 
vote by mail elections. So I think that in itself has not been 
the reason for its high turnout.
    There are a number of studies, I would point to some in 
California, where there are some districts where people are 
required to vote by mail because the number of people who have 
the same ballot is quite small, and a number of academics have 
studied those districts and found actually a negative result. I 
don't claim that that is the case, but the range of results is 
from some small negatives to some small positives.
    The one exception, I will say, is for local elections, 
small really low turnout local elections, local referenda. 
There, we do see some significant turnout. But for any major 
Statewide race or even local State legislative or for House of 
Representatives, those races, we don't see an increase in 
turnout.
    Senator Roberts. I am going to refer to the Dark Ages when 
I attended the Kansas State University, the home of the ever-
optimistic and fighting Wildcats, and we had two political 
science professors that were pretty famous, or infamous. One 
was trying to lower the voting age to 16. This is before even 
18 and if you are old enough to fight, you are old enough to 
vote, which I always thought was a rather odd connection, but I 
can understand it.
    And another political science professor who, I would say to 
the Chairman, had a very unique version. He said a higher voter 
turnout isn't necessarily good, that the old expression, it 
doesn't matter who you vote for, just make sure you vote, if 
you really look at that, that is a pretty stupid observation. I 
mean, that is you would just vote for anybody, just vote. Now, 
that happens in this country, I understand that, for various 
reasons. And so he thought that the best election would 
probably be about a 20 percent turnout and everybody else is 
playing golf and things were getting along just fine. I happen 
to also harken back, that was the Eisenhower years and----
    Chairman Schumer. You would have very few municipal golf 
courses.
    Senator Roberts. That is true. We would have very few golf 
courses. Actually, we have a lot of pastures out in Kansas that 
would work out.
    [Laughter.]
    Senator Roberts. But Ike was President. It was eight years 
of peace and prosperity. People seemed to be less interested in 
dramatic legislation, et cetera, et cetera.
    But at any rate, I am not asking you to comment on that 
except that an informed vote, I think, is probably the most 
important thing. But Ms. Brown, you have raised something that 
really makes my eyebrows go up. You argue that in your State, 
the civic ritual of voting at the polling place has been 
replaced with a new civic tradition of families getting 
together to discuss and vote their ballots together.
    I am thinking of my own family and then I am also thinking 
of maybe a family reunion in which this could take place. I 
shudder at that thought, knowing various members of my family--
extended.
    [Laughter.]
    Senator Roberts. I have one son and three daughters--pardon 
me, two daughters. I am into grandchildren now, but that is 
another thing. I ran for the Senate in 1996. My one daughter 
was in school at the University of Kansas. I don't know how 
that happened, but anyway, she enrolled in that school and 
completed her degree. At any rate, the other daughter and the 
other son did precisely what their Great-Grandfather and their 
Grandfather and their father had recommended in regards to 
voting, along with the various mothers.
    The other daughter, however, decided that she marched to a 
different drum. I can remember the case of where her brother 
put one of my bumper stickers on her car, which I thought would 
be an understandable thing. She immediately took it off. She 
didn't put my opponent's bumper sticker up there. To date, I do 
not know if she voted for me in 1996, and I have never asked 
her how she voted in this last election.
    But I can see--I am not too sure that this is a civic 
ritual in regards to our family. It is not that we do not have 
meaningful dialogue about the issues of the day and various 
candidates and their qualifications, but at any rate, I don't 
know. Isn't the key difference that while both systems allow 
families to sit around and discuss the candidates, only one 
assures a secret ballot as opposed to everybody signing at the 
appropriate time and everybody pretty much knowing how 
everybody voted, which I am not sure is a good thing?
    Ms. Brown. Mr. Chair, Senator Roberts, I have a number of 
responses and I will try and be responsive to your question, 
but----
    Senator Roberts. Well, help me with my daughter first.
    [Laughter.]
    Ms. Brown. Okay. Well, I will say, when I first ran for the 
legislature, I ended up running against a three-term incumbent 
and was outspent two-to-one. I won that race by seven votes.
    Senator Roberts. Wow.
    Ms. Brown. And one of the reasons I ran to become Secretary 
of State is because I believe that every vote really does 
matter and needs to be counted.
    In terms of the power differential, and Chair Schumer 
raised this earlier, I think that is the beauty of the Wyden-
Davis approach, and that is it allows the individual voter to 
determine whether he or she wants to do the vote by mail. If 
someone wants to retain the polling place system and go to the 
polls, they can do that. That is the beauty of the Wyden 
approach. It gives the voter the choice.
    In terms of the family conversations, the wonderful thing 
that happens in Oregon is that our voters' pamphlets come out 
about three weeks ahead of time, so the photos are there, the 
statements are there from the candidates. The ballots come 
about a half-a-week later. It gives people an opportunity to 
discuss what is on the ballot. We have a complicated ballot in 
Oregon normally because we have an initiative process to 
further complicate everything, and so normally, there are about 
five to eight initiatives on the ballot, as well.
    So people discuss these issues in neighborhood 
associations, in churches, in libraries. Certainly, there is 
discussion around family dining room tables. I know that folks 
try to influence people, but to my knowledge, there is no 
coercion happening. We haven't had any evidence of coercion.
    And I don't know what I can do to help you with your 
daughter other than to share with her my story of seven votes 
and that we would hate it if you were to lose.
    Senator Roberts. Well, you will probably agree with her. 
That is the thing that----
    [Laughter.]
    Senator Roberts. One other thing. I am way over time here, 
and I apologize to the Chairman and everybody else. This is 
probably not really pertinent, but it does make me stop and 
think a minute. I was editor and publisher of a weekly 
newspaper in Phoenix during the explosion of Phoenix, and it is 
still exploding, in more ways than one, but at any rate, it was 
on the West side of Phoenix and obviously the home of Barry 
Goldwater. And I actually traveled with the Senator and had 
great respect for him, and then obviously it was the Johnson-
Goldwater election. In that newspaper, I editorialized that 
perhaps the experience of Johnson weighed heavily in favor of 
voting for him and wrote that editorial and voted accordingly.
    My father, who is the former Republican National Chairman 
under Eisenhower, did not get a copy of the paper--thank God--
until about two weeks later. Coercion? You have no idea about 
the coercion that followed for years afterwards. I have never 
made that mistake again in regards to at least a decision like 
that, either that or I just simply, might add, just sort of 
took it for granted that I voted the way that he thought that I 
should vote. But anyway, I would assume that not all families 
are like mine.
    I want to thank you all very much and thank you for your 
personal examples and your expertise. I think it has been a 
good hearing, Mr. Chairman.
    Chairman Schumer. Well, thank you, Senator Roberts, and you 
helped make it a good hearing, as did our three witnesses.
    I would say to you, I just had a little experience. I ran 
for the Assembly at age 23. My parents, particularly my mother, 
thought I should go practice law and make some money and she 
told many of her friends not to vote for me so I would get this 
dumb idea of being a politician from my thick head. So you are 
not alone.
    [Laughter.]
    Chairman Schumer. Anyway, thank you all for coming.
    The hearing is adjourned.
    [Whereupon, at 11:17 a.m., the committee was adjourned.]
                      APPENDIX MATERIAL SUBMITTED

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       NOMINATION OF WILLIAM J. BOARMAN TO BE THE PUBLIC PRINTER

                              ----------                              


                        WEDNESDAY, MAY 25, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
Room SR-301, Russell Senate Office Building, Hon. Charles E. 
Schumer, Chairman of the Committee, presiding.
    Present: Senators Schumer, Warner, and Bennett.
    Staff present: Jean Bordewich, Staff Director; Jennifer 
Griffith, Deputy Staff Director; Veronica Gillespie, Elections 
Counsel; Julia Richardson, Counsel; Lauryn Bruck, Professional 
Staff; Lynden Armstrong, Chief Clerk; Matthew McGowan, 
Professional Staff; Justin Perkins, Staff Assistant; Mary 
Jones, Republican Staff Director; Shaun Parkin, Republican 
Deputy Staff Director; Paul Vinovich, Republican Chief Counsel; 
Michael Merrell, Republican Counsel; Abbie Platt, Republican 
Professional Staff; Trish Kent, Republican Professional Staff; 
and Rachel Creviston, Republican Professional Staff.

             OPENING STATEMENT OF CHAIRMAN SCHUMER

    Chairman Schumer. Okay. Good morning, and I want to thank 
my colleagues here--I apologize for being late--and thank our 
witness here today. I want to thank my colleague on this 
Committee, Senator Warner; he is going to Chair the remainder 
of the hearing, and I appreciate him doing that, because I had 
a previous commitment, but we wanted to move this on. And, of 
course, I want to thank Senator Bennett always.
    The hearing will come to order. I would like to welcome 
everybody, including our Ranking Member, Senator Bennett, and 
Senator Warner, and especially our nominee, William ``Bill'' 
Boarman. The Government Printing Office was created by the 
Printing Act in 1860 for the production and distribution of 
information products and services for all three branches of the 
Federal Government. GPO opened its doors on March 4, 1861. That 
is the same day President Lincoln became the 16th President of 
the United States. In fact, next year is the GPO's 150th 
anniversary.
    Today the Public Printer employs 2,400 staff, manages 
annual revenue of $1 billion. From the earliest days of the 
Nation, congressional leaders recognized the need for printed 
documents to assist both chambers in Congress in communicating 
with the American public. James Madison cited in his notes of 
the Federal Convention of 1787 the delegates' concern over the 
Government's responsibility to inform the citizenry when he 
wrote, ``It should not be in the option of the legislature to 
conceal their proceedings.'' This is the GPO's primary mission: 
``Keeping America informed.''
    GPO produces the Nation's most important Government 
information products, such as the Congressional Record and 
Federal Register. Both are produced at the GPO's main plant in 
Washington. However, nearly 60 percent of the printing the GPO 
manages for the Federal Government is procured through private 
sector vendors throughout the country. On a daily basis, the 
agency maintains between 600 and 1,000 print-related projects 
through a longstanding partnership with America's printing 
industry.
    Congress is dependent upon the ability of the GPO to 
provide printed and electronic versions of our legislative 
documents and the Congressional Record in a timely manner. With 
the ever increasing workload of Congress and our demanding 
schedules, the agency needs to continue to provide the 
necessary resources to meet our legislative demands so that we 
can carry out our duties as mandated by the Constitution and 
governed by the rules of both Houses of Congress.
    The Public Printer faces diverse and pressing challenges in 
the upcoming years, which I will not list here, but we know 
what they are. And now, if confirmed, Mr. Boarman would be the 
26th Public Printer. He is a practical printer by trade. He 
began his career by serving a 4-year union apprenticeship at 
the McArdle Printing Company in Washington, D.C. Following 
completion of his apprenticeship, he worked in a number of 
local establishments. In 1974, he went to work for the GPO. In 
1977, he took a leave of absence from the GPO after being 
elected a full-time union official. He has continued a 
professional relationship with the GPO that spanned more than 
30 years.
    Over the years, he has testified on GPO matters on a number 
of occasions before our Committee and before the Joint 
Committee on Printing. Since 1989, he served as president of 
the Printing, Publishing, and Media Workers Sector of the CWA, 
Communications Workers of America, and president of the 
International Allied Printing Trades Association.
    Mr. Boarman has served as Chairman of the Board of Trustees 
of the CWA/ITU-negotiated pension plan, CWA Pension Plan 
Canada, and Executive Board of the Council of Institutional 
Investors. So we are fortunate to have a nominee of Mr. 
Boarman's caliber and experience for this important post, and I 
look forward to your testimony, sir.
    I call on Bob Bennett.

              OPENING STATEMENT OF SENATOR BENNETT

    Senator Bennett. Thank you very much, Mr. Chairman. My 
connection with the GPO goes back to the time when I chaired 
the Leg. Branch Subcommittee of the Appropriations Committee 
and went down to the GPO and spent time with the Public 
Printer, went through the plant, got an understanding of how 
big an operation this really is. And since that introduction of 
the GPO, I have seen it change. I have seen it grow. The number 
of its employees has gone dramatically as its productivity has 
gone up dramatically, which is a pattern that we see throughout 
American business generally.
    So, Mr. Boarman, we welcome you here, recognize that you 
will be taking on a very significant management challenge, and 
I simply want to take the opportunity to thank all of those who 
have gone before you, not just the Public Printers but all of 
the GPO employees who have worked so tirelessly on behalf of 
the Congress and the executive branch. This is an agency, as 
the Chairman indicated, that serves more than one branch of 
Government, even though the funding does come through the 
Congress.
    So it is very important that we continue the innovation, 
the change, the pattern of keeping up with the times that has 
been established in the last decade, and I look forward to 
hearing what plans you have to do that, and I am happy to 
welcome you to the Committee.
    Mr. Boarman. Thank you, sir.
    Senator Bennett. Thank you, Mr. Chairman.
    Senator Warner [presiding]. Thank you, Senator Bennett.
    We have been joined by my colleague and friend, Senator 
Cardin from Maryland, and I know he is here for the purpose of 
introduction. I will simply add one point. Mr. Boarman, if 
confirmed, taking on this position is of particular interest to 
both Senator Cardin and me since so many GPO employees live in 
both of our States. I know you reside on the other side of the 
river, but this is an organization that has a great deal of 
effect right here in the national capital area, and I am very 
pleased that my friend and colleague, Senator Cardin, is here 
for the purpose of introduction.
    Senator Cardin.

 STATEMENT OF HON. BENJAMIN L. CARDIN, A UNITED STATES SENATOR 
                   FROM THE STATE OF MARYLAND

    Senator Cardin. Senator Warner, thank you very much. 
Senator Bennett, thank you for your attention to these issues. 
I am not going to repeat everything that Senator Schumer has 
said, but I do want to welcome my constituent, Bill Boarman, to 
this Committee and strongly recommend his approval, his 
confirmation.
    Bill Boarman has been a lifelong resident of Maryland. He 
currently resides in Severna Park. And from the beginning of 
his career as a pre-apprentice at the McArdle Printing Company 
in Washington, D.C., in 1966, Mr. Boarman has devoted his life 
to the printing industry and protecting the workers within the 
printing industry. As has been pointed out, he has worked his 
way up to the senior vice president of CWA, and he has emerged 
as an icon, quite frankly, in the printing industry. He is so 
well qualified for this position. He is an expert. He is well 
respected by the workers at the Government Printing Office, 
and, Senator Warner, as you pointed out, many of those workers 
live in Maryland and live in Virginia, and we have heard 
nothing but praise as to the selection of Mr. Boarman to lead 
this agency.
    Beginning in 1974, Mr. Boarman spent some of his early 
years as a career journeyman printer in the United States 
Government Printing Office, so he has the experience. He worked 
his way up, as I said, in the unions. He has been involved in 
every aspect and has been called upon by us as an expert in 
this area. We rely upon Mr. Boarman's views.
    He has been an informal adviser to the leadership at the 
Government Printing Office. He has been called upon many times 
to help out, and now we have the opportunity to have him as our 
director. He is so well qualified. He has the leadership that 
is needed to bring us into the issues that Senator Bennett has 
raised dealing with new technologies and the new needs within 
the printing field.
    So I am proud to recommend him, and I am proud that he is a 
fellow Marylander.
    Senator Warner. Thank you, Senator Cardin. Of course, you 
are welcome to stay, but I know time constraints may mean that 
you have got to move on.
    I know as well that Senator Mikulski was hoping to be here. 
Scheduling prohibited her, but she has got a statement of 
introduction as well.
    [The prepared statement of Senator Mikulski inserted into 
the record]
    Senator Warner. At some point along the way, we may be 
joined by our friend Steny Hoyer from the other side of the 
body. And if he comes in, we will interrupt your testimony, Mr. 
Boarman, to let him make his opening comments.
    So, with that, I would ask the nominee to stand and raise 
his right hand? Do you swear that the testimony you are to 
provide is the truth, the whole truth, and nothing but the 
truth, so help you God?
    Mr. Boarman. I do.
    Senator Warner. Please be seated. Now, Mr. Boarman, if you 
would like to go ahead and make an opening statement. I know 
you have got friends and colleagues around you. If you want to 
make any introductions to the Committee, please feel free to do 
so. Then we are anxious to hear your statement.

TESTIMONY OF WILLIAM J. BOARMAN, OF MARYLAND, TO BE THE PUBLIC 
                            PRINTER

    Mr. Boarman. Thank you, Mr. Chairman, and thank you, 
Senator Bennett, for holding this hearing today. I fully 
appreciate how busy each of you are with the important work of 
the Senate, and I am honored by your presence here today for my 
hearing.
    I want to thank Senator Cardin for his wonderful 
introduction. I hope that Congressman Hoyer will be able to 
make it. Both of these gentlemen have a record of standing up 
for the citizens of Maryland, and I am proud that they wanted 
to be here for me today. It is an honor.
    Mr. Chairman, I would like to introduce a few very special 
people that are here with me today. First, my daughter, Lauren, 
who is sitting right behind me. Lauren is my only daughter and 
looks after me with the love and support that only a daughter 
can offer.
    I would like to mention my son, Christopher--I think he is 
watching this right now. He could not be here because he is 
teaching a spring course at Berkeley where he is finishing his 
Ph.D. in medical anthropology.
    Also, I am honored to introduce my colleague and friend for 
the last 22 years, Larry Cohen, the president of the 
Communication Workers of America. He is sitting right behind 
me, and he also is my boss.
    And, finally, a young man whose grandfather happens to be 
my very good friend, and his name is Chase Lawson. He is 
sitting over here. Chase is a junior at Mount St. Joe's in 
Baltimore, and he is very interested in government and 
politics, and I invited him here today so that he could get a 
first-class civics lesson on the advice-and-consent role of the 
U.S. Senate as prescribed by the Constitution. So welcome, 
Chase.
    Let me begin by saying I am deeply honored by the 
President's nomination to be the Public Printer of the United 
States. For a practical printer by trade, there is no higher 
post in the Nation than as head of the GPO, with its 
distinguished tradition of supplying the printing and 
information needs of the Federal Government for almost 150 
years.
    I have been a printer for more than 40 years. I learned my 
trade in the private sector and worked in several large 
commercial printing plants and in two large daily newspapers. 
As was stated, I was appointed to the GPO in the 1970s as a 
printer and left the GPO for a full-time job with my union. 
Now, since 1989, I have served as president of the Printing, 
Publishing, and Media Workers Sector of CWA.
    But while at the GPO, I worked to achieve practical 
agreements with management that opened the door to 
technological change and saved jobs. And during my career with 
CWA, I have worked toward the same objective, establishing a 
proven track record of cooperation and achievement in labor-
management relations in the printing and publishing industry.
    I have also served in a number of executive capacities for 
a variety of boards and councils and have served for the last 
21 years as chairman of the board of the CWA/ITU-negotiated 
pension plan, and as president of the Union Printers Home 
Corporation, which is a retirement community our union runs in 
Colorado Springs, Colorado.
    Now, from executive decision making to fund management and 
controlling costs to making payroll, I have had a broad range 
of management experience that I hope you will agree has 
equipped me to lead the GPO, if I am confirmed.
    The GPO today is a substantially different agency compared 
with the one that I left many years ago. It employs fewer 
employees but is significantly more technologically advanced. 
However, one thing has not changed: The GPO continues to employ 
an extraordinarily talented group of men and women who every 
day carry out their responsibilities with unmatched expertise 
and dedication. If there is any one asset that best 
characterizes the GPO, it is the superb quality of the people 
who work there.
    I think the GPO has made progress in recent years in 
improving functions it carries out. If confirmed, I look 
forward to continuing with that progress and to ensure that 
what the GPO strives to accomplish in the coming years will 
contribute measurably to the distinguished record of service it 
has compiled over the past 150 years.
    Finally, on a personal note, I have had the high honor and 
privilege to have been consulted by and testified before some 
of the true giants of the Senate in days gone by. In just this 
Committee, I have had close personal relationships with former 
Chairman: Claiborne Pell, Charles McC Mathias, Mark Hatfield, 
Wendell Ford, and John Warner. Each of these men have sought my 
counsel and judgment on matters that relate to the GPO. 
Likewise, I have worked with almost every Public Printer since 
the Nixon administration to stand beside them on matters that 
had grave importance to the agency as it changed and evolved 
from administration to administration and Congress to Congress.
    I believe it was these unique relationships and experience 
that the White House focused on when they asked me to serve the 
President and accept the nomination as the 26th Public Printer 
of the United States. I truly believe that all of this 
background and 35 years' involvement with the GPO will serve me 
well if I am confirmed by the Senate as the next Public 
Printer. I am ready and willing to serve if I can get your 
support.
    Thank you, Mr. Chairman, and I would be happy to answer any 
questions that you and Senator Bennett may have of me at this 
time.
    [The prepared statement of Mr. Boarman was submitted for 
the record]
    Senator Warner. Well, thank you, Mr. Boarman. Thank you for 
your testimony, and I look forward to getting to questions in a 
moment.
    Let me just add for the benefit of Chase, you know, you are 
also getting something rather unusual in today's hearing. Not 
only are you going to get to see your friend Mr. Boarman 
testify and the Majority Leader of the House of Representatives 
come all the way over to the Senate to make an introduction, 
but you are also getting something particularly unusual in a 
hearing of this nature. As a new Senator, I usually sit way, 
way down there on the end, and it is a special time that I get 
to actually sit up here in the big chair. So there will be 
people in this room making sure that I do not mess up as well.
    But recognizing before we get to my questions that we have 
been joined by Representative Hoyer, the Majority Leader of the 
House to make an introduction as well, I will call on my good 
friend Steny Hoyer.

  STATEMENT OF HON. STENY HOYER, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF MARYLAND

    Mr. Hoyer. Thank you very much, Mr. Chairman, and I am 
pleased to see you in the exalted seat of the chairmanship. I 
know it is tough, having been a Governor and running the place, 
to come and sit at the end of the line. So this is a change.
    I want to say I am particularly pleased to be here with 
Senator Bob Bennett. I think Senator Bennett is one of the 
outstanding Members of the Congress. He is a Senator who has 
served with the public's interest uppermost in his mind, with a 
view towards making democracy work, not simply having 
confrontation but sitting down at the table and trying to make 
democracy work.
    Senator Bennett, I want to say I am one Democrat who is 
going to be very sorry to see you leave the Senate. I think it 
is a loss for Utah. I think it is a loss for the Nation. You 
represented, I think, and continue to represent the kind of 
Member of the Senate and the House that the American public 
wants to see. It is unfortunate that a very narrow band of 
people in both of our parties think that what we need is 
confrontation, not collaboration. The country will be lesser 
for your loss, and I want to thank you for your service.
    Senator Bennett. Thank you very much, and I would remind 
you it is Mr. Boarman's hearing and not mine.
    [Laughter.]
    Senator Bennett. Thank you.
    Mr. Hoyer. Well, and I will not vote on confirming you or 
not confirming you, so I will know my proper role.
    Mr. Chairman, I am here to--and I will submit a statement 
for the record--just briefly to say that I have known Bill 
Boarman for a very long period of time. He and his wife are 
good friends, so I am not objective on his nomination. But as 
you have seen from previous testimony--I presume Senator Cardin 
was here and Senator Mikulski as well, probably--we have all 
known him very well, not only his expertise that the Public 
Printer will have to deal with, but also his judgment, his wise 
counsel has been, as he said, for many of us throughout my 
tenure in the Congress of the United States, which now I am in 
my 30th year, has been extraordinarily well received and 
important. And I think the administration has made an excellent 
choice for the Public Printer. I think he will work well with 
the people who work at GPO. I think he understands the 
necessity to look to make a solid business model work for the 
GPO. I know he has talked about that in his statement.
    So I will not belabor the point other than to say that I am 
strongly in support of his nomination. I think he will serve 
our country well and serve the Government Printing Office well 
and serve the Congress well. And I urge his confirmation, and 
thank you for this opportunity to appear.
    [The prepared statement of Mr. Hoyer was submitted for the 
record]
    Senator Warner. Thank you, Leader Hoyer.
    Mr. Hoyer. Also, I will vote to confirm Senator Bennett.
    [Laughter.]
    Senator Warner. I am glad you said that after the 
convention instead of before.
    Mr. Boarman, again, thank you for your testimony. And, 
Representative Hoyer, thank you for your statement. Obviously, 
from your background you are a printer's printer, a great 
background, varied and the kind of experience across the board 
in terms of all the aspects of the challenge that the President 
has selected you for.
    I have got a couple of questions, though, before we get to 
Senator Bennett. I am sure this body will confirm you, but, you 
know, printing is going through as much transformation as any 
industry that is around.
    I wanted to start my questioning, though, with--you know, 
traditionally, the GPO has had a unique role in terms of the 
relationship kind of as a public-private entity with, my 
understanding, nearly 60 percent of the GPO printing activities 
are actually procured through private contracts, and I think on 
a daily basis that may mean between 600 and 1,000 print 
projects a day are managed in this ongoing relationship.
    With the changing nature of the business, how do you see 
that business relationship between the GPO and the various 
private sector printers around who the agency employs? Do you 
see that changing? Do you see it continuing? What is your sense 
of the business model going forward?
    Mr. Boarman. Well, thank you, Senator. The GPO relies 
heavily on the private sector in order to do the work of the 
Government. The main printing plant is set up primarily to do 
the overnight, quick-turnaround work that the Congress and the 
President demand. It is really not set up for the kind of work 
that we procure through our procurement program. So we are 
heavily dependent on the private sector to support that 
program. I think we contract somewhere over $500 million worth 
of work through the GPO procurement program. And we hope to get 
more, because the law requires all agencies to use the 
Government Printing Office.
    Unfortunately, there was a dust-up about 10 years ago about 
separation of powers. Since GPO is a legislative branch agency, 
some Assistant Attorney General wrote a memo suggesting that 
they did not have to use GPO. As a result, GPO has lost some of 
its business, even though the law is very clear, Title 44, that 
they must procure their work through the Government Printing 
Office.
    But I think, you know, my approach to this would be rather 
than arguing about whether it is a separation of powers issue--
because I think that is ridiculous, but obviously a judge would 
have to decide that--let these agencies give GPO a chance to 
procure the work for them, bring more business in.
    I believe that the procurement program at GPO is the best 
price execution that money can buy and that we can get the job 
done quicker, better, and at the lowest cost for the taxpayers 
if we are given the chance. And I think that the agencies that 
use us would stand up here today and say the same thing, that 
that is exactly right.
    So as Public Printer, what I would do is to try to go out 
and interact with the agencies that are not using us to try to 
bring more work into GPO because I think it is the right way to 
do it. The procurement program is overseen by the IG. To my 
knowledge there has never been any fraud or investigation 
there. And it is best price execution, and it creates jobs in 
the private sector when we have contracted out, and it 
basically goes to small mom-and-pop shops who get this work. 
There are big printers in there, like Donnelly and others, who 
get that work, but many of the people in our program are just 
small printers who depend on this work.
    So I just think the relationship will continue. I think it 
will grow, and I look forward to working with the private 
sector on this to help it grow.
    Senator Warner. One of the questions, I think one of the 
unique aspects you are going to bring to this job is you have 
kind of seen it from every angle. You have worked at the GPO; 
you have obviously been involved in the labor movement; you 
have seen it from the workforce standpoint; you have obviously 
advanced your career into the management sector as well. You 
know, but with the challenges as more and more documents are 
viewed in electronic form, when we see increasing pricing 
pressure across the printing industry and across Government as 
a whole, I would like you to speak for a moment about how you 
are going to balance the needs of workforce versus technology 
versus the price constraints that the Government is under and 
how perhaps your background might suit you for that challenge.
    Mr. Boarman. Well, I have been advised by the current 
political leadership and the professional leadership at GPO 
that next year GPO will actually be in a deficit position. So 
it is not a great place to start from, but it is what it is.
    You know, I come from a background of, unfortunately, 
inheriting organizations that seem to have deficit problems, 
and I have had success in dealing with those. My president, 
Larry Cohen, and I inherited a huge deficit when he took over 
CWA. I think it was somewhere in the neighborhood of about $18 
million. And we did it the old-fashioned way. We did not use 
gimmicky and auditors' gimmicks. You know, we made the hard 
choices that had to be made in order to get our budget in line, 
and today it is in line.
    Likewise, with the nursing home that I run, when I took it 
over, it had a $1.5 million-a-year deficit. Today it is 
operating in the black, has $2 million in the bank, and, you 
know, probably makes about $600,000 a year. Again, we had to 
make hard choices.
    For GPO, fortunately they have two streams of income. One 
is the appropriations. Now, most likely that is going to be 
flat. I think the Public Printer asked for $167 million, but I 
think it is more likely to be in the area of $140, $147 
million.
    So the other stream is customers, bringing new business in, 
and we now have this program, the SID, security and intelligent 
documents, where we print the passports but we also do 
something called smart cards, and we are doing it for a number 
of Government agencies. It has a chip in it, and it is 
absolutely secure, Government-to-Government relationship. So we 
need to build that business to try to offset some of the losses 
that are going to come as a result of less printing, less ink 
on paper, and more digitization. And I believe we can do that.
    I met with the directors and I have been briefed by all of 
the top-level folks at GPO, and I have to tell you that I was 
very, very impressed with the SID program. And I think it is 
something that Congress should support. I think they should 
encourage the security agencies of our Nation to take a look at 
GPO, give us a chance to do these ID cards for all these 
different agencies, because I think we can show that the 
security with us Government to Government is a much better way 
to go.
    So there is a lot of opportunity there. I am going to start 
out, I think, with a deficit, but I am used to that, and I have 
got some ideas to deal with it, and I look forward to the 
challenge.
    Senator Warner. I have got a couple more questions, but if 
I ever hope to get close back to this short of being here for 
20 years, I will not go into Senator Bennett's time. Senator 
Bennett?
    Senator Bennett. Thank you very much, Mr. Chairman.
    Mr. Boarman, I will give you an opportunity to deal with 
the issue that has come up very recently, your campaign 
contribution to Mr. Halter. Here is the chance for you to 
describe how that came about and how you realized you needed to 
send us the letter that you did, and we are grateful to have 
received it, whether there was any union efforts, CWA efforts, 
and you have involvement in that in any way that the Committee 
needs to know about. Can you go through that whole situation 
for us and lay it out?
    Mr. Boarman. Well, I can tell you what I know. I was asked 
if I would consider giving a contribution to the lieutenant 
governor who was running for the Senate, a $250 contribution, 
and I agreed to do that, and I actually did it online. Someone 
sent me an e-mail from the campaign, and I went on, and in 
about 5 minutes' time, I plugged in with my bank card and made 
the $250 contribution. It completely passed through my mind 
because it happened so quick, and I did not really have a 
receipt that I remember. It was not in my checkbook. I heard 
about it--someone mentioned it in an article yesterday that I 
had made a $250 contribution, and I went, ``What is this 
about?'' And then I had to go back and think about it.
    So I went to the Federal Election Commission site to see 
when I made it, because I could not remember, and it was March 
17th of 2010 I made the contribution, and I immediately wrote 
the Committee a letter, since I had unknowingly omitted that 
from the statement, the questionnaire that I sent up here, on 
which I had listed other contributions that I have made.
    That is all I can tell you. I was not involved in any 
bundling that I have been accused of. I had nothing to do with 
any of that. I made a $250 contribution.
    Senator Bennett. As you think about it, have there been 
other contributions you have been asked to do, presumably by 
the union, that you said, okay, well, I will take care of that, 
and you go online and do that? Or is this a single experience?
    Mr. Boarman. I do not think so, Senator, because most of us 
contribute through our union COPE program, and they take out an 
amount of money from our check every 2 weeks, and it goes into 
our political action committee. That is----
    Senator Bennett. So your contributions have been to the 
PAC.
    Mr. Boarman. Yes, yes. I cannot ever remember doing this 
any other time.
    Senator Bennett. Okay, thank you. I appreciate getting 
that----
    Mr. Boarman. That is all I can tell you.
    Senator Bennett. Okay. You have indicated that you get over 
$500 million from the private sector, and, yes, it is Donnelly 
at one end and then the mom-and-pop operation at the other. I 
think in all probability the mom-and-pop operations that you 
refer to do not pay union prevailing wages. Are you going to 
require that they pay union prevailing wages in order to deal 
with the GPO? Or will you take their bid without digging into 
their own internal compensation plan?
    Mr. Boarman. I have no plans to change the current system. 
I think it would be unlawful to impose union conditions for 
printing. I do not know that there is any law that requires you 
could do that, and the program works perfectly. I believe that 
the union printers could compete in this arena if they chose to 
do that. And I do not think there would be any need to do that. 
So the answer is no, I do not have any plans to change what we 
are doing. We do it too well. It is just it has been in place 
for so long, and I think in order for me to be successful to 
attract the work that I talked to Senator Warner about from 
other agencies, I cannot mess around with a program that works. 
I mean, I am convinced, from meeting with the printing 
procurement people, that they know what they are doing. They 
know how to reach out to the customers. They know how to 
address their needs. They know how to take care of the issues. 
If there is a billing issue, there is a special person that 
deals with that to make sure that, you know, they are not 
overbilled and, if we do overbill them, that we refund them.
    I have no plans to change what I consider one of the finest 
procurement programs in the Government.
    Senator Bennett. All right. In that vein, then, let us talk 
about the structure. It is currently structured into distinct 
business unit, such as security and intelligence documents 
where the passports and other secure credentials are produced, 
and then plant operations, publications, information sales, 
print procurement and so on, and each of these business units 
has its own P&L, and accounting on a monthly basis to spend it 
through expenses, contributions, and so on.
    This allows a degree of transparency in each unit so that 
you know exactly what is being earned and what is being spent 
in each one. And there is some concern that if they all got 
lumped together, some of the transparency might disappear.
    Do you have any feeling about how you will deal with these 
four separate units?
    Mr. Boarman. Well, I do not have any plans to change the 
way the transparency is flowing. I think that is the best way 
to do it. I think I told you in our meeting that we had the 
other day that one of the things that concerned me was that the 
CFO was so far down the chain in the scheme of things at GPO. 
In all the organizations that I have headed, the CFO has been 
right beside me and someone I count on to tell me the truth 
about, you know, how much do we have, what is the cash flow, 
you know, what is outstanding, what is coming in, what is the 
auditor saying.
    I think that relationship between the chief executive 
officer and the CFO is very important. So that is something 
that I would look at to hopefully bring the CFO closer to me so 
that I could keep my handle on the dollars, especially as it 
appears we are going to be entering a deficit situation.
    But, no, I think the transparency that you talked about is 
fine. I think the way they have separated the businesses is--it 
gives them a chance, especially the SID program. They were part 
of operations at one point, and I think doing pretty well. But 
now that they are separate and there is more security, I think 
the opportunity for SID to grow and to attract more businesses 
from maybe NSA or from other agencies that do security work--we 
do some Homeland Security products--it is much better set 
aside. As I understand it, all the people in the SID area have 
the necessary security clearances. We have the necessary guards 
to keep the place safe from people getting in and getting their 
hands on passports, which could be a disaster.
    So if we can protect the passports for the State 
Department, I believe we could do the same thing for every 
agency of Government. So I think those separate business units 
are working well, and I would continue that.
    Senator Bennett. Thank you.
    Mr. Boarman. Thank you, sir.
    Senator Bennett. Thank you, Mr. Chairman.
    Senator Warner. Let me follow up on the line that Senator 
Bennett has raised. One of the things that I saw in your 
background, Mr. Boarman, that impressed me was the fact that 
you have been involved with operations, as you mentioned 
earlier, where you would come in and there was a deficit 
circumstance and you, from a good business perspective, brought 
it back up into a more positive balance. Clearly, with the 
changing nature of printing and with the notion that, should 
you move forward in this position--and I hope you will--the GPO 
will be in a deficit position to start with. I want to simply 
give you a chance to reemphasize again that coming into that 
deficit circumstance, recognizing that you have got a series of 
private contracts out there, recognizing that you have got 
Government enterprises that have other choices, if you are 
going to increase GPO's market share, you are going to have to 
be price competitive to do that, and that means if there are 
good working relationships with your private sector partners, 
regardless of the make-up of their workforce, you are not going 
to do anything to cut back on GPO's competitiveness in the 
marketplace. I would like you to expound on that a bit.
    Mr. Boarman. No, absolutely not. I think the relationship 
with the printing industry and the contractors--there are a 
couple different groups that represent these folks that work 
with us--is a good one, and I look forward to meeting with 
these folks after confirmation and creating that bond even 
stronger and let them know that we count on them for what they 
do. We cannot do it alone. We have to have these private 
contractors. And it is just good Government to send as much as 
we can to the private sector.
    I read some statistics somewhere in a publication that GPO 
had cut back on procurement, but I checked into that with the 
professionals at GPO, and they tell me that the amount of work 
that was contracted out last year is the same percentage that 
it had been in previous years.
    Now, if someone counted the SID stuff, which does not go 
out, it has to be the passport work and the smart cards, which 
is done in-house, if they included that in part of it, I think 
you could skew the numbers. But the printing that we normally 
contract out will continue, and we hope to build on that by 
getting more agencies to come with us and using the GPO.
    Again, give us a chance, let us prove that we can do the 
best price execution. You can always go back to the printer 
that you had if we do not do the job we think we can do. I am 
absolutely convinced that we are going to save the taxpayers 
money because we can do it cheaper.
    Senator Warner. In terms of workforce, let me ask you a 
question there. Again, we see in the newspaper business it is 
going through a dramatic transition. The printing business is 
going through a dramatic transition. The whole notion of ink on 
page and printing books or the traditional periodical is being 
transformed as we move to more electronic media.
    How both within--and I imagine in terms of your contracting 
you can find that new expertise, but within the GPO itself, how 
do you make sure that your workforce stays current? How do you 
make sure that, both from a technology standpoint and from a 
workforce development standpoint, you are truly training the 
public printers of the 21st century and not of the 20th 
century?
    Mr. Boarman. Well, that is going to be a challenge because 
I have been advised by the human capital people in the 
briefings that I have had that we have an aging workforce, and 
that it is going to become a critical issue over the next few 
years. And some of these people have extraordinary skills that, 
if we let them go out the door without transferring that to 
someone else, we could have a catastrophe.
    You know, when the Congress of the United States decides to 
stay in late at night and legislate, it is not an immaculate 
conception that creates the Congressional Record that comes to 
the Hill every day along with the bills and hearings. It is the 
people that I talked about in my opening statement who know 
exactly what they have to do every night and every day when 
they come in there, and they know they have to come in, whether 
it is snowing or whatever, to get the Record out. If Congress 
is in, we are in.
    Now, I think that we can be very competitive in terms of 
attracting the kind of people that we need to the GPO. I think 
the rates of pay and I think the benefits and the security of 
working at the GPO is a very attractive package for young 
people who are pursuing a career in printing and publishing, 
whether they are in a technical college or whether they are at 
RIT or they are working in the private sector as a printer, 
like I did.
    I think we need to develop a program to go out and recruit 
these people to replace the people that we know we are going to 
lose over the next 4 or 5 years. I think that what I would do 
right away is have human capital provide me with a critical 
list of the people that are going to retire, and then I think I 
would sit down with the line supervisors that know these 
individuals and say--to tell me which one of these have skills 
that we need to find out and have them work with someone so 
that when they leave we do not lose that information, we do not 
lose that institutional memory that they have.
    So that is what I have been thinking about, how to deal 
with this, because whenever you lose people like we are going 
to lose, it is going to be a difficult situation for GPO. But I 
am confident that they will work with us and that we can 
recruit the people to replace them.
    Senator Warner. I have got one more question, but I will go 
ahead and--well, you know, one of the--the Federal Depository 
Library Program has the requirement of safeguarding the 
public's right to know about what is going on in the 
Government, and, you know, the Obama administration has made 
transparency a hallmark of its administration.
    Now, sometimes translating that transparency into reality 
has been a challenge, and some depository librarians feel that 
GPO is not meeting the needs of its users or adjusting to the 
increasing demands for digital access to Government 
information.
    You know, what can the GPO do to work with the librarians 
to ensure that the Federal Depository Library Program will 
really meet its goal of keeping Americans informed in this ever 
more transparent world?
    Mr. Boarman. Well, I think the underlying problem can be 
spelled out in one sentence. About 95 percent or more of all 
Federal documents are born digital today and will never end up 
in the Depository Library Program. And everything that we do 
that we put ink on paper can be created digitally as well.
    The law, which originally, I think, dates to the early 
1800s, was probably the first open Government law passed by the 
Congress, because it provided for this wonderful program of the 
Federal Depository Library Program where every library gets so 
many copies. The Senators can designate a regional library who 
get even more. But today I think their walls are bulging with 
the books, and they have no place to put them.
    But the current law, which was passed in 1962 and has not 
been revisited, has to be looked at so that we can modernize it 
to deal with the fact that so many documents are born 
digitally. We cannot do that by ourselves. The Congress of the 
United States--it would have to be--I would assume it would 
have to be the House Administration and Senate Rules Committee 
would have to come up with some changes to the law to deal with 
that issue.
    Now, I want to caution you. I do not think we ought to 
throw the baby out with the bath water. I think this program is 
one of the greatest programs that our country has. The Congress 
funds this thing, about $40 million each year, to make sure 
that people are informed about what their Government does, and 
I certainly do not want to tinker with that. But I do think 
there are some things that we can do to make it easier on the 
libraries.
    If I am confirmed, I will get together with the library 
community and try to hear them through, what they think would 
best work in this area. And then I think I would come to the 
Congress with some suggestions on how we can deal with it 
without messing around with the underlying tenets of this law 
that provides for this information.
    So that is another challenge, but I think the libraries and 
the GPO will work well together. They are a great stakeholder 
for us, and I look forward to working with them about this 
issue.
    Senator Warner. Well, I think if Senator Bennett does not 
have any other questions, that was my last question. I 
appreciate, Mr. Boarman, your testimony here today, and I think 
you will be a great Public Printer. Obviously, I think you 
bring a great and varied background, and I do think, you know, 
one of the challenges is going to be--since the GPO will be in 
a deficit circumstance, we are going to need that business 
approach to make sure that we can get the best value possible 
for the taxpayer, and clearly in an area that is going through 
dramatic transformation driven by technology and by the 
public's need to know. So I personally look forward to 
supporting your appointment, and I believe you have got a big 
job in front of you.
    So on behalf of the Rules Committee, I would like to thank 
the nominee, Mr. Boarman, for his testimony. The record will 
remain open for 5 business days for additional comments. The 
Committee plans to consider this nomination in a timely manner 
so that the Senate can confirm Mr. Boarman as the next Public 
Printer.
    Since there is no further business before the Committee, 
the Committee is adjourned subject to the call of the Chair.
    [Whereupon, at 10:53 a.m., the Committee was adjourned.]
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                            BUSINESS MEETING

                              ----------                              


                         TUESDAY, JULY 20, 2010

                      United States Senate,
             Committee on Rules and Administration,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:30 p.m., in 
Room S-216, The Capitol, Hon. Charles E. Schumer, Chairman of 
the Committee, presiding.
    Present: Senators Schumer, Inouye, Dodd, Feinstein, Durbin, 
Nelson, Murray, Pryor, Udall, Warner, and Bennett.
    Staff present: Jean Bordewich, Staff Director; Jennifer 
Griffith, Deputy Staff Director; Veronica Gillespie, Elections 
Counsel; Josh Brekenfeld, Professional Staff; Julia Richardson, 
Counsel; Lauryn Bruck, Professional Staff; Lynden Armstrong, 
Chief Clerk; Matthew McGowan, Professional Staff; Mary Jones, 
Republican Staff Director; Shaun Parkin, Republican Deputy 
Staff Director; Abbie Platt, Republican Professional Staff; and 
Rachel Creviston, Republican Professional Staff.
    Chairman Schumer. The Committee will come to order. A 
quorum of ten members is present. Unless there is a request for 
a roll call vote, this will be a voice vote.
    Do I hear a motion that the nomination of William J. 
Boarman of Maryland to be Public Printer be reported to the 
Senate with the recommendation that it be approved?
    Senator Bennett. I so move.
    Chairman Schumer. Is there a second?
    Senator Warner. Seconded.
    Chairman Schumer. All in favor, say aye?
    [A chorus of ayes.]
    Chairman Schumer. Oppose, nay?
    [No response.]
    Chairman Schumer. The ayes have it. The nomination is 
ordered and reported to the Senate with the recommendation that 
it be approved.
    The meeting is adjourned, and thank you all for coming and 
for your patience.
    [Whereupon, at 2:31 p.m., the Committee was adjourned.]
  

                                  
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