[Senate Hearing 112-770]
[From the U.S. Government Publishing Office]
S. Hrg. 112-770
COMPILATION OF HEARINGS AND MARKUPS
=======================================================================
HEARINGS AND MARKUPS
before the
COMMITTEE ON RULES
AND ADMINISTRATION
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST AND SECOND SESSIONS
__________
FEBRUARY 17, 2011; MARCH 1, 2011; MAY 11, 2011; JUNE 29, 2011;
MARCH 29, 2012; AND APRIL 25, 2012
__________
Printed for the use of the Committee on Rules and Administration
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COMMITTEE ON RULES AND ADMINISTRATION
FIRST SESSION
CHARLES E. SCHUMER, New York, Chairman
DANIEL K. INOUYE, Hawaii LAMAR ALEXANDER, Tennessee
DIANNE FEINSTEIN, California MITCH McCONNELL, Kentucky
RICHARD J. DURBIN, Illinois THAD COCHRAN, Mississippi
BEN NELSON, Nebraska KAY BAILEY HUTCHISON, Texas
PATTY MURRAY, Washington SAXBY CHAMBLISS, Georgia
MARK L. PRYOR, Arkansas PAT ROBERTS, Kansas
TOM UDALL, New Mexico RICHARD SHELBY, Alabama
MARK R. WARNER, Virginia ROY BLUNT, Missouri
PATRICK LEAHY, Vermont
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
Note: Archived webcasts of all hearings and an electronic version of
this report are available at http://rules.senate.gov.
COMMITTEE ON RULES AND ADMINISTRATION
SECOND SESSION
CHARLES E. SCHUMER, New York, Chairman
DANIEL K. INOUYE, Hawaii LAMAR ALEXANDER, Tennessee
DIANNE FEINSTEIN, California MITCH McCONNELL, Kentucky
RICHARD J. DURBIN, Illinois THAD COCHRAN, Mississippi
BEN NELSON, Nebraska KAY BAILEY HUTCHISON, Texas
PATTY MURRAY, Washington SAXBY CHAMBLISS, Georgia
MARK L. PRYOR, Arkansas PAT ROBERTS, Kansas
TOM UDALL, New Mexico RICHARD SHELBY, Alabama
MARK R. WARNER, Virginia ROY BLUNT, Missouri
PATRICK LEAHY, Vermont
Jean Parvin Bordewich, Staff Director
Mary Suit Jones, Republican Staff Director
Joshua Brekenfeld, Deputy Staff Director
Kelly Fado, Director of Operations Oversight
Adam D. Ambrogi, Chief Counsel
Veronica Gillespie, Elections Counsel
Sharon Larimer, Assistant to the Staff Director
Julia Richardson, Counsel
Abbie Sorrendino, Professional Staff
Nicole Tatz, Staff Assistant
Shaun Parkin, Republican Deputy Staff Director
Paul Vinovich, Republican Chief Counsel
Michael Merrell, Republican Elections Counsel
Lindsey Ward, Republican Professional Staff
Trish Kent, Republican Professional Staff
Rachel Creviston, Republican Professional Staff
Lynden Armstrong, Chief Clerk
Matthew McGowan, Professional Staff
C O N T E N T S
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February 17, 2011
ORGANIZATIONAL MEETING
Opening Statement of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 1
Hon. Lamar Alexander, Ranking Member, a U.S. Senator from the
State of Tennessee............................................. 2
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March 1, 2011
EXECUTIVE SESSION ON OMNIBUS BUDGET FOR SENATE COMMITTEES........ 6
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May 11, 2011
EXECUTIVE BUSINESS MEETING....................................... 7
Statements Submitted by Members of the Committee:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York, on consideration of William J. Boarman, of
Maryland to be the Public Printer.............................. 11
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York, on S. Res 116, to provide for expedited Senate
consideration of certain nominations subject to advice and
consent........................................................ 11
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York, on S. 739, a bill to authorize the Architect of
the Capitol to establish battery recharging stations for
privately owned vehicles in parking areas under the
jurisdiction of the Senate at no net cost to the Federal
Government..................................................... 12
Hon. Tom Udall, Opening Statement, on S. Res. 116................ 12
MATERIALS SUBMITTED FOR THE RECORD
Hon. Joseph Lieberman, Chairman, a U.S. Senator from the State of
Connecticut and Hon. Susan Collins, Ranking Member, a U.S.
Senator from the State of Maine on S. Res. 116................. 15
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June 29, 2011
HEARING ON NOMINATION OF GINEEN BRESSO, THOMAS HICKS, AND MYRNA PEREZ
TO BE MEMBERS OF THE ELECTION ASSISTANCE COMMISSION
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 17
Hon. Lamar Alexander, Ranking Member, a U.S. Senator from the
State of Tennessee............................................. 17
Hon. Thad Cochran, a U.S. Senator from the State of Mississippi.. 19
Hon. Roy Blunt, a U.S. Senator from the State of Missouri........ 20
Testimony of:
Ms. Gineen Bresso, Nominee for Member, Election Assistance
Commission..................................................... 21
Mr. Thomas Hicks, Nominee for Member, Election Assistance
Commission..................................................... 21
Ms. Myrna Perez, Nominee for Member, Election Assistance
Commission..................................................... 22
Prepared Statements of:
Ms. Gineen Bresso, Nominee for Member, Election Assistance
Commission..................................................... 27
Mr. Thomas Hicks, Nominee for Member, Election Assistance
Commission..................................................... 30
Ms. Myrna Perez, Nominee for Member, Election Assistance
Commission..................................................... 34
Material Submitted for the Record:
Hon. Michael E. Capuano, a U.S. Congressman from the State of
Massachusetts.................................................. 39
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March 29, 2012
HEARING--S. 2219, THE DEMOCRACY IS STRENGTHENED BY CASTING LIGHT ON
SPENDING IN ELECTIONS ACT OF 2012 (DISCLOSE ACT OF 2012)
Opening Statements of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 40
Hon. Lamar Alexander, Ranking Member, a U.S. Senator from the
State of Tennessee............................................. 42
Hon. Dianne Feinstein, a U.S. Senator from the State of
California..................................................... 43
Hon. Roy Blunt, a U.S. Senator from the State of Missouri........ 44
Hon. Richard Durbin, a U.S. Senator from the State of Illinois... 44
Hon. Tom Udall, a U.S. Senator from the State of New Mexico...... 45
Hon. Patrick Leahy, a U.S. Senator from the State of Vermont..... 47
Testimony of:
Mr. Fred Wertheimer, Founder and President, Democracy 21......... 49
Mr. David Keating, President, Center for Competitive Politics.... 50
Mr. Richard L. Hansen, Chancellor's Professor of Law and
Political Science, University of California-Irvine School of
Law............................................................ 52
Prepared Statements of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 68
Hon. Tom Udall, a U.S. Senator from the State of New Mexico...... 70
Mr. Fred Wertheimer, Founder and President, Democracy 21......... 73
Mr. David Keating, President, Center for Competitive Politics.... 87
Mr. Richard L. Hansen, Chancellor's Professor of Law and
Political Science, University of California-Irvine School of
Law............................................................ 97
Materials Submitted for the Record:
Statement submitted by Senator Sheldon Whitehouse, a U.S. Senator
from the State of Rhode Island................................. 129
Statement submitted by American Civil Liberties Union (ACLU)..... 131
Statement submitted by Alliance for Justice...................... 137
Statement submitted by Americans for Campaign Reform............. 141
Statement submitted by Mr. Adam Skaggs, Senior Counsel, and Mimi
Marziani, Counsel, Brennan Center for Justice at NYU School of
Law............................................................ 143
Statement submitted by Coalition for Accountability in Political
Spending (CAPS)................................................ 154
Statement submitted by Common Cause.............................. 157
Statement submitted by Demos Ideas & Action...................... 158
Statement submitted by IRRC Institute............................ 193
Statement submitted by Professor Richard Briffault, Columbia Law
School......................................................... 287
Statement submitted by League of Women Voters.................... 317
Statement submitted by Professor David M. Primo, University of
Rochester...................................................... 320
Statement submitted by Professor John C. Coats IV, Harvard Law
School......................................................... 348
Statement submitted by Public Citizen............................ 409
Statement submitted by Mr. Ron Freund, Emeryville, CA, Fr.
Charles W. Dahm, Chicago, IL, Ms. Tamara Schiller, Chicago, IL,
Mr. Norman Bannor, Chicago, IL, Ms. Linda Williams, Deerfield,
IL, Ms. Margot Worfolk, Naperville, IL, Mr. Joe Houston,
Naperville, IL, Ms. Laura Tye, Chicago, IL, and Mr. James Tye,
Chicago, IL.................................................... 414
Statement submitted by Professor Ciara Torres-Spellisey, Stetson
University College of Law...................................... 417
Statement submitted by the Campaign Legal Center................. 458
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April 25, 2012
HEARING--THE SENATE CAMPAIGN DISCLOSURE PARITY ACT
Opening Statements of:
Hon. Charles E. Schumer, Chairman, a U.S. Senator from the State
of New York.................................................... 463
Hon. Lamar Alexander, Ranking Member, a U.S. Senator from the
State of Tennessee............................................. 464
Testimony of:
Hon. Jon Tester, a U.S. Senator from the State of Montana........ 465
Hon. Nancy Erickson, Secretary of the U.S. Senate................ 466
Mr. Paul Ryan, the Campaign Legal Center......................... 468
Prepared Statements of:
Hon. Nancy Erickson, Secretary of the U.S. Senate................ 471
Mr. Paul Ryan, the Campaign Legal Center......................... 474
ORGANIZATIONAL MEETING
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THURSDAY, FEBRUARY 17, 2011
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The Committee met, pursuant to notice, at 3:33 p.m., in
Room SR-301, Russell Senate Office Building, Hon. Charles E.
Schumer, Chairman of the Committee, presiding.
Present: Senators Schumer, Inouye, Nelson, Pryor, Udall,
Warner, Leahy, Alexander, Cochran, Shelby, and Blunt.
Staff Present: Jean Bordewich, Staff Director; Jennifer
Griffith, Deputy Staff Director; Jason Abel, Chief Counsel;
Adam Ambrogi, Administrative and Legislative Counsel; Carole
Blessington, Assistant to the Staff Director; Sonia Gill,
Counsel; Julia Richardson, Counsel; Lauryn Bruck, Professional
Staff; Lynden Armstrong, Chief Clerk; Matthew McGowan,
Professional Staff; Mary Suit 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 SENATOR SCHUMER
Chairman Schumer. The Rules Committee will come to order.
Good afternoon, and I would like to welcome my colleagues to
the first Rules Committee meeting of the 112th Congress, and
the first thing I want to say is how much I look forward to
working with our new Ranking Member, Senator Alexander. He has
been a great member of this Committee, and as you know, he and
I spent a lot of time with our two Leaders, Reid and McConnell,
trying to figure out rules changes, and he was always smart and
gracious and willing to try and work together. And I know we
will be able to do that on many issues as we move forward.
On the Republican side, we have two additional new members.
First we have Senator Blunt of Missouri, who is here; and then
we have the two new kids on the block: Senator Leahy and
Senator Shelby, who probably have at least 60 years of
seniority in the Senate together, but they are seated--they
wanted to remember what it was like to sit at the very end, and
here they are. But I have been sitting at the other end of
Senator Leahy's Judiciary Committee for a long time, and if I
can be half as good a Chairman as he is, I will be happy.
Each of our new members, of course, brings a wealth of
experience, and I look forward to their participation on the
Committee.
This year, we have a number of important issues to
consider: Senate administration, oversight of legislative and
executive branch agencies, legislation, Presidential
nominations, and the Senate rules and procedures. And as I
mentioned, Senator Alexander and I have already worked closely
together on the changes to the Senate rules and procedures that
were adopted last month. We are continuing to work with the
Homeland Security and Governmental Affairs Committee on
reducing the number of Presidential appointments that require
confirmation, and other members of the Committee, especially
Senator Udall, who is here, played key roles in these efforts
as well, so we thank him for his many efforts.
Senator Alexander and I will work with other members, and
we will try to be as bipartisan or nonpartisan as possible,
depending on the time, on issues of interest to you. As Senator
Udall can tell you, the whole push for rules changes began when
he early on last year came over and said, ``Why don't we have
some hearings?'' And the rest is, as they say, history. So that
is an open invitation to any member of this Committee on either
side. If there are particular issues you are interested in
working on, having hearings about, please do not be shy. Let us
know.
So now I want to turn this over to my friend and the new
Ranking Member of this Committee, Senator Alexander, for
opening remarks, and then anyone else who wishes to make some
remarks, feel free, and maybe particularly this Committee being
so novel, we welcome the junior members making remarks even on
their first day.
Senator Alexander?
OPENING STATEMENT OF SENATOR ALEXANDER
Senator Alexander. Thank you. Thanks, Chuck. This is a real
honor for me to not just be on the Committee but to be the
Ranking Member. In many ways, this is the most important
Committee in the Senate because it has a particular
responsibility for preserving the Senate as an institution--an
institution that deals with the most important issues facing
our country and does so in a way that preserves minority
rights. And so I take that seriously, and that is the reason I
asked to be on the Committee to begin with.
Second, I appreciate the chance to work with Chuck Schumer.
We have had a busy beginning because of the good work that
Senator Udall and others did in raising some questions about
the operation of the Senate. We had a good debate after good
hearings here. And I think while they did not get everything
they proposed, which is usual in the Senate, they created an
environment in which we made some real progress in not just
changing Senate rules but changing Senate behavior, at least to
begin with.
So we are off to a good beginning. They have made a real
contribution, and we are in the midst of some important
changes.
I look forward to the legislation that we all worked on
together to strengthen the Senate in two ways. One was to make
it easier for any President to staff his or her administration.
President Kennedy I think had 250 Presidential appointments.
President Obama has nearly 1,500 confirmed appointments, which
is too many. And, second, there is the phenomenon of innocent
until nominated, the idea that we take otherwise respectable
Americans and the President invites them to serve in his
administration, and they get drawn through a gauntlet of
confusing forms that turns them into a criminal by the time
they are confirmed or not confirmed.
So we are working on both problems with the support of both
Leaders and the support of a lot of people, and working on it
with Chuck has been a real good experience because he is
direct, hard-working, and, I have found, pleasant to work with.
Finally, I want to welcome----
Chairman Schumer. Surprise, surprise, surprise.
Senator Alexander. No, no, no. About all I need to know is
where you are, and it is never hard to find that out from you.
[Laughter.]
Senator Alexander. I would say that our newest members must
be the most experienced new members of the Committee in the
Senate, maybe in Senate history, I mean, Senator Shelby and
Senator Leahy to begin with, and Senator Blunt is no rookie. He
has been the whip of the House of Representatives, one of most
accomplished new members of the Senate that has come here in a
long, long time.
So I am delighted to be on the Committee. I look forward to
working with Chuck. We have got some important issues to
finish.
I would just say, Chuck, that we hope to get the
legislation we are working on up and going when we come back
from recess and move it through the Senate and have something
to be proud of.
Chairman Schumer. Great. Well, thank you, Senator
Alexander, and I do truly look forward to working with you.
Does anyone else want to make an opening statement? We have
nine. We are waiting for Senator Durbin who is evidently on his
way. Very nice of him to come. Oh, Senator Inouye is here, our
great leader. So we have ten.
Why don't we go forward? And then anyone who wants to make
an opening statement can do so afterwards, unless our new
members would like to say something, since among them they
probably have over 100 years of legislative experience.
Wouldn't you say? Each of you has been in office at least 30
years, in elected office.
[Informal discussion followed before continuing the
Organizational Meeting business.]
Senator Leahy. Thirty-seven, but Senator Inouye has been
here longer.
Chairman Schumer. These are our new members, Mr. Chairman,
that young fellow down there and this young guy right here.
Please, Senator Shelby.
Senator Shelby. Mr. Chairman, I do not need a chair today
to sit in, but if I do, can I come straight to the Chairman on
that request?
Chairman Schumer. Absolutely. I have served under not
Senator Blunt, but I have been a member when Senator Leahy has
been Chairman, and still is, of the Judiciary Committee, and a
member of Banking when Senator Shelby was Chairman. So I know
they know both ends of the game.
Senator Chambliss. Mr. Chairman?
Chairman Schumer. Senator Chambliss.
Senator Chambliss. Can I get some more office space?
[Laughter.]
Senator Blunt. Mr. Chairman, can I get any office space?
[Laughter.]
Chairman Schumer. I think we are about finished.
By the way, one of the things we did is we sped up the
procedure, and--are we finished yet. Are we finished picking
offices?
Ms. Bordewich. No.
Chairman Schumer. Who are we up to?
Ms. Bordewich. We do not say who or what number.
Chairman Schumer. What number?
Ms. Bordewich. We are over half done. We are in the 60s.
Chairman Schumer. We are in the 60s. We are much more than
half done, so we should finish in about a month. It used to
take until August. For you young members, you may not remember
that. One day you guys will get a hideaway.
Senator Nelson. Well, are hideaways next? Are we going to
start bumping in hideaways next?
Chairman Schumer. Hideaways and extra space come next.
Senator Leahy. Mr. Chairman? Mr. Chairman, it is a lot
better than it used to be. When I first came here 37 years ago,
I was the junior-most member of the Senate. I was number 99.
There had been a tied race in New Hampshire, and they finally
did the race over again, literally.
Chairman Schumer. That is right.
Senator Leahy. And myself and the next most junior person
had rooms in the basement of the Russell Building. Mine had
been a recording studio, so I had that kind of fiberboard with
the holes all through it. After about 15 minutes, you were
going like this. So I spent a lot of time walking outdoors.
Chairman Schumer. Well, you are in a little better shape
now than you were then, Mr. Chairman.
Senator Leahy. I am.
Chairman Schumer. Senator Shelby?
Senator Shelby. Mr. Chairman, the hideaways, when do we go
through those?
Chairman Schumer. As soon as we finish the offices. So I
would say in about a month.
Senator Shelby. Thank you.
Chairman Schumer. And there are lots of--what number in
seniority are you, Dick?
Senator Shelby. In the whole Senate?
Chairman Schumer. Yes. That is how hideaways work.
Senator Shelby. Maybe 15.
Chairman Schumer. No, you are higher than that.
Senator Shelby. Well, I do not know. I might be lower.
Chairman Schumer. Oh, Senator Blunt, you will get a
hideaway as well because everyone gets one now with the Visitor
Center.
Okay. Why don't we get started?
Senator Blunt. Mr. Chairman, I am guessing that my
hideaway, like my current office, will not have a window.
Chairman Schumer. Even my hideaway does not have a window
yet. It is all done by strict seniority. Being Chairman of
Rules entitles you to not much, but glad to be here.
[Here Committee Members resumed Organizational Meeting
business.]
Why don't we begin our agenda? It is adoption of the
Committee Rules of Procedure and then the approval of an
original resolution which will fund the Rules Committee during
the 112th Congress. The Rules of Procedure are the same as the
last Congress.
The second item on the agenda is the approval of the
budget. As many members are aware, the Rules Committee sent a
letter to Committee Chairmen and Ranking Members regarding
their budgets for the 112th Congress. The letter included
guidance from the leadership on the amount of funds that would
be available for each committee, and I am pleased to report
that our resolution, the Rules Committee resolution, is within
these guidelines. I am also pleased to inform the Committee
that all other committees will be reporting resolutions that
are within the leadership guidelines, so we have had great
cooperation among both the Chairs and the Ranking Members of
all the committees.
So according to the Committee's Rules of Procedure, we need
ten members to report legislation. We have them. So we can have
a voice vote on the motions unless there is a request for a
roll call. So at this time, a quorum is present. Is there any
further debate on the two agenda items--the proposed Rules of
Procedure or the Rules Committee budget for the next 2 years?
Senator Inouye. Move to adopt.
Senator Alexander. Second.
Chairman Schumer. We have a motion and a second to adopt.
Without objection, the Rules of Procedure are adopted.
The second question is on the adoption of the original
resolution authorizing expenditures for the Rules Committee for
the 112th. All in favor say aye?
[A chorus of ayes.]
Chairman Schumer. All opposed, nay?
[No response.]
Chairman Schumer. The ayes have it. Without objection, the
original resolution is reported.
So, with that, I thank you for your attendance.
[Whereupon, at 3:45 p.m., the Committee was adjourned.]0
EXECUTIVE SESSION ON OMNIBUS BUDGET FOR SENATE COMMITTEES
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TUESDAY, MARCH 1, 2011
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:10 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,
Udall, Warner, Leahy, Alexander, Cochran, and Blunt.
Staff Present: Jean Bordewich, Staff Director; Jennifer
Griffith, Deputy Chief of Staff; Jason Abel, Chief Counsel;
Sonia Gill, Counsel; Julia Richardson, Counsel; Lauryn Bruck,
Professional Staff; Lynden Armstrong, Chief Clerk; Matthew
McGowan, Professional Staff; Jeff Johnson, Staff Assistant;
Mary Suit Jones, Republican Staff Director; Shaun Parkin,
Republican Deputy Staff Director; Paul Vinovich, Republican
Chief Counsel; Michael Merrell, Republican Counsel; and Rachel
Creviston, Republican Professional Staff.
Chairman Schumer. The Rules Committee will come to order.
The Committee is meeting today to consider an original
resolution, the Omnibus Committee Funding Resolution, which
will authorize expenditures by Senate Committees for 112th
Congress.
I am pleased to report all the Committees reported funding
for resolutions within the guidelines. The total authorization
for individual Committees is $242,710,872, down from
$256,702,618. So it has dropped over $10 million.
Under the joint leadership letter of February 3 which
restored special reserves to their historic purpose, Committees
are no longer guaranteed access to special reserves on request.
Since we have a quorum, is there any further debate on the
original resolution authorizing expenditures by the Committee
of the Senate for the 112th Congress?
Senator Alexander. Mr. Chairman, I move its adoption.
Chairman Schumer. Any objection?
[No response.]
Chairman Schumer. All those in favor say aye.
[A chorus of ayes.]
Chairman Schumer. Opposed nay.
[No response.]
Chairman Schumer. The ayes have it. Without objection, the
original resolution is ordered reported. Since there is no
further business, first let me thank all the members for their
very, very conscientious service and on-time arrival, and the
hearing is now adjourned.
[Whereupon, at 10:12 a.m., the Executive Session
adjourned.]0
EXECUTIVE BUSINESS MEETING
----------
WEDNESDAY, MAY 11, 2011
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 2:16 p.m., in
Room 301, Russell Senate Office Building, Hon. Charles E.
Schumer, Chairman of the committee, presiding.
Present: Senators Schumer, Inouye, Feinstein, Durbin,
Pryor, Udall, Warner, Leahy, Alexander, and Blunt.
Staff Present: Jean Bordewich, Staff Director; Jennifer
Griffith, Deputy Staff Director; Jason Abel, Chief Counsel;
Carole Blessington, Assistant to the Staff Director; Josh
Brekenfeld, Professional Staff; Sonia Gill, Counsel; Julia
Richardson, Counsel; Lauryn Bruck, Professional Staff; Lynden
Armstrong, Chief Clerk; Jeff Johnson, Staff Assistant; Mary
Suit Jones, Republican Staff Director; Shaun Parkin, Republican
Deputy Staff Director; Paul Vinovich, Republican Chief Counsel;
Michael Merrell, Republican Counsel; Lindsey Ward, Republican
Professional Staff; and Trish Kent, Republican Professional
Staff.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. We expect two members on their way and
Senator Shelby is across the hall and is ready to come in, so I
thought we would just do the business and then we could just
vote as soon as they come, if that is okay with everybody.
Okay. Then thank you all for coming. Everyone rearranged their
schedules, so we very much appreciate--Senator Alexander and I
appreciate people coming.
We are going to be very quick. I am going to now submit all
my statements in the record and ask anyone else to submit their
statements in the record.
[Submitted for the Record]
We are going to try to get three things done today quickly.
The first is the nomination of William Boarman to be Public
Printer. The second is S. Res. 116, to expedite the
confirmation process. This is the bill that Senator Alexander
has championed and shepherded through to remove some 400 people
from the confirmation rolls. And the third is a bill by Senator
Levin to direct the Architect of the Capitol to create and
install battery recharging stations for electric cars that
Senator Alexander and I have both co-sponsered. So we are going
to have three separate votes, voice votes, hopefully, on those,
and as soon as ten people are here, we will do that.
Senator Leahy. Mr. Chairman?
Chairman Schumer. The Senator from Vermont.
Senator Leahy. Mr. Chairman, I have had the opportunity to
chair two authorizing committees, Agriculture and Judiciary,
and I think what Senator Alexander and you and others have done
in wanting to cut down the number of people who should not even
be in the confirmation process--they are not lifetime, they
really serve at the pleasure of the President--I strongly
endorse what you have done. I think it is a great move forward.
Chairman Schumer. Thank you, Senator Leahy.
Senator Warner?
Senator Warner. And I actually just wanted to raise the
same point. As someone who does not have the experience of
Senator Leahy but sometimes kind of question all of the time
and effort spent on what seem to be relatively minor
nominations, the fact that Senator Alexander has taken the lead
and worked with you to cut down that process, I think, makes
more effective government and I commend you both.
Chairman Schumer. Thank you, Senator.
We have ten, so without further ado, maybe we can vote. Do
you want to say something more?
Senator Alexander. No. Why don't we vote.
Chairman Schumer. Statements will be in the record. He
shows his wisdom as a legislator.
Is there any further debate on the nomination of William J.
Boarman, of Maryland, to be Public Printer?
[No response.]
Chairman Schumer. Seeing none, the question is on reporting
the nomination favorably to the Senate. Unless there is a
request for a roll call, this will be a voice vote. All those
in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. Opposed, nay.
[No response.]
Chairman Schumer. The ayes have it. The nomination is
ordered reported to the Senate with the recommendation the
nominee be confirmed.
Second is S. Res. 116, nominations. Unless there is a
request for a roll call vote, this will be a voice vote. Is
there any further debate on reporting S. Res. 116, to provide
for expedited Senate consideration of certain nominations
subject to advise and consent?
[No response.]
Chairman Schumer. Seeing none, the question is on reporting
S. Res. 116 favorably to the Senate. All those in favor, say
aye.
[Chorus of ayes.]
Chairman Schumer. Opposed, nay.
[No response.]
Chairman Schumer. The ayes have it. S. Res. 116 is ordered
reported to the Senate.
Finally, we have S. 739. Unless there is a request for a
roll call vote, this will be a voice vote. Is there any further
debate on S. 739, a bill to authorize the Architect of the
Capitol to establish battery charging stations for privately
owned vehicles in parking areas under the jurisdiction of the
Senate at no net cost to the Federal Government?
[No response.]
Chairman Schumer. Seeing none, the question is on reporting
S. 739 favorably to the Senate. All those in favor, say aye.
[Chorus of ayes.]
Chairman Schumer. Opposed, nay.
[No response.]
Chairman Schumer. The ayes have it. S. 739 is ordered
reported to the Senate.
The record will remain open for any statements that people
may wish to make, and I want to thank everybody for coming.
Before I adjourn the meeting, I am going to call on Senator
Alexander.
Senator Alexander. Mr. Chairman, I want to thank you and
the members for rearranging schedules. The confirmation bill is
a good bill for the Senate, and Senator Schumer and I are going
to meet with the White House Director of Personnel and
encourage them to clean up and make more orderly the executive
branch nominations process so we have less of the ``innocent
until nominated'' phenomenon.
The electric vehicle bill is a good start as a pilot
program to do our part to take what I think is the best step
forward in reducing our use of oil. It's a small step, but also
a big step, at no cost to the taxpayers.
Thank you very much.
Chairman Schumer. Any other comments?
Senator Feinstein. Mr. Chairman?
Chairman Schumer. The Senator from California.
Senator Feinstein. If I might, it is my understanding that
this is Josh Brekenfeld' s first bill that has come out of
Committee. He has served me as staff. He has served this
committee as staff. So I thought it might be nice just to say,
well done, Josh. Much of the best.
Chairman Schumer. Thank you, Senator Feinstein, and Josh
has done an incredible job in every way in a professional
sense. In the Rules Committee, we are staffed by career civil
servants who just serve the body, and the body would not work
without people like Josh, so I want to add my thanks to you,
Josh. Thanks for your service.
Any other comments? If not, then we are adjourned.
[Whereupon, at 2:22 p.m., the committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
----------
Statement of Chairman Charles E. Schumer--Rules Committee Executive
Business Meeting--May 11, 2011
William J. Boarman to be Public Printer
The Rules Committee shall come to order. Good morning.
I would like to welcome everyone, including our Ranking Member,
Senator Alexander, (and my fellow Rules Committee colleagues present
here today).
The agenda includes both executive and legislative business--
consideration of the nomination of William (Bill) Boarman for the
position of Public Printer and consideration of S. 739 and S. Res. 116.
Our first order of business is the Public Printer nomination.
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 publishes the Nation's most important government information
products, including the Congressional Record and Federal Register, in
electronic format for widespread digital access by the public, and in
printed form. It also produces and maintains FdSys (``FED-SIS''), an
enormous website and database that is the sole source of official
government documents.
Nearly 60 percent of the printing the GPO manages for the Federal
Government is procured through private sector vendors across the
country. On a daily basis, the agency manages between 600 and 1,000
print-related projects a day through a long-standing partnership with
America's printing industry.
Mr. Boarman has a distinguished career in management and has
mastery of the field of publishing, including employment at GPO in the
1970's. He already is working hard to modernize the process of making
information available to the general public in digital as well as
printed form.
Last Congress, the Rules Committee held a hearing on Mr. Boarman's
nomination on May 25, 2010, and a markup on July 20, 2010, where he was
reported out of Committee by voice vote. The nomination was placed on
the Executive Calendar.
Mr. Boarman currently serves as Public Printer, following his
appointment on December 29, 2010, by President Obama. On January 26,
2011, the President nominated him for Senate confirmation to a full
term.
When we have ten Members present, we can have a voice vote to
report this nominee out of committee, unless there is a request for a
roll call vote.
__________
Opening Statement of Senator Charles E. Schumer
Markup of S. Res. 116
May 11, 2011
We will now move to S. Res. 116, a bipartisan resolution which will
create a standing order that will expedite the Senate confirmation
process for over 250 nominations. I'd like to thank my friend, Ranking
Member Alexander, for his work on this bipartisan effort.
This resolution is one result of the six filibuster hearings that
this committee held last year, and a byproduct of the reform deal that
was struck at the beginning of this Congress. These hearings were
suggested by Senator Udall, who has been a true leader on this subject,
and I look forward to working with him on these issues in the future.
In January, Majority Leader Reid and Republican Leader McConnell
announced a bipartisan working group to streamline the confirmation
process as part of our overall effort to reform Senate rules and
procedures related to the filibuster.
Since that time, in conjunction with the Leaders, Senators
Alexander, Lieberman, Collins and I have been working closely in a true
bipartisan effort to improve how the Senate deals with executive
nominations. Our mandate was limited in scope, but the effect will be
felt throughout our government.
S. Res. 116 as it currently stands will establish by standing order
a new Senate procedure to streamline the confirmation process for part-
time positions on certain boards and commissions. A majority of these
boards require political balance. We are doing this--rather than
eliminating Senate consideration in its entirety--in order to ensure
that these politically-balanced boards remain bipartisan.
The expedited process for this class of ``privileged nominations''
will allow uncontested nominations to avoid the full committee process.
Each step of the process will be recorded on new sections of the
Executive Calendar. Upon request by any Senator, such a nomination may
go through the regular committee confirmation process.
However, the presumption is that these non-controversial part-time
positions usually will be approved by unanimous consent, and not be
held up as part of other battles.
S. Res. 116 works in tandem with S. 679, which was reported out by
the Homeland Security and Governmental Affairs Committee last month.
That bill eliminates Senate confirmation altogether for 204
Presidential appointments.
After their markup, we received a letter from Senators Lieberman
and Collins asking us to consider ``whether it would be appropriate''
to consider chief financial officer positions in our resolution, not
wishing to speak for Senator Alexander and myself during their markup.
Their opinion was that they were ``not yet persuaded'' that these
positions need to remain Senate confirmable.
We think that consideration of this issue is best left for the
entire Senate, and in a way that does not weaken our efforts.
I'd now like to ask Ranking Member Alexander if he has any opening
statement he'd like to give.
__________
Opening Statement of Senator Charles E. Schumer
Markup of S. 739
May 11, 2011
We will now move to S. 739, a bill which authorizes the Architect
of the Capitol (AOC), at no cost to the Federal government, to create
and install electric vehicle recharging stations in Senate parking
facilities.
This bill was drafted with bipartisan support. Senator Alexander
and I join Senators Kerry, Murkowski, Bingaman, Merkley and Stabenow in
supporting this bill sponsored by Senator Levin.
It bears repeating: This bill creates a program that will not cost
the Federal government one dime. S. 739 funds the installation and
maintenance of the charging stations by billing the individuals who use
the plug-in stations.
S. 739 works on a simple premise: the more people who drive
electric cars on campus, the more plug-in stations the AOC will
install. S-739 insures that the demand for plug-in stations will match
the number of dues paying participants who fund the program.
This bill is needed as more and more people decide to buy electric
cars. Currently, the Architect does not have the authority to install
plug-in stations on the Capitol campus. This bill fixes that problem in
a smart, cost effective manner.
__________
Senate Rules Committee
Opening Statement
Senator Tom Udall
May 11, 2011
Mr. Chairman,
I began calling for reform of the Senate rules in January 2010.
Since then, many things have happened that have advanced that goal, but
we are still a long way from real, substantive reform.
I appreciate the chairman's willingness to work on this issue and
devote a substantial amount of the committee's time to the hearings we
held last year. We discussed many ideas on how to make the Senate a
more functional and deliberative body--including those proposed by
Senators Wyden, Bennet, and Harkin.
What became clear in those hearings, and from the dysfunction that
we witnessed on the Senate floor, is that the Senate is a broken
institution.
In the last Congress, because of rampant and growing obstruction,
not a single appropriations bill was passed. There wasn't a budget
bill. Only one authorization bill was approved--and that was only at
the very last minute. More than 400 bills on a variety of important
issues were sent over from the House. Not a single one was acted upon.
Key judicial nominations and executive appointments continue to
languish.
These issues cannot be fixed with minor reforms--they require us to
make real changes in how the Senate conducts its business. We attempted
to make these changes in January, but were unable to pass the most
substantive reforms. However, as part of that process we did get an
agreement to continue working on the problem. Part of that agreement
included removing about one-third of Executive nominees from needing
Senate confirmation. What came out of that effort was two pieces of
legislation--S. 679, the statutory piece of nomination reform that
removes about two hundred nominees from confirmation, and S. Res. 116,
which is the subject of today's meeting.
While I appreciate the effort to draft these pieces of legislation,
I do not believe they go far enough to reform the Senate and ultimately
do not address the real problems in this body. S. 679 removes many
nominees from needing Senate confirmation, but those exempted are
primarily congressional affairs and public information officer
positions in Executive branch agencies. Senate Resolution 116 provides
an expedited confirmation procedure for many part-time board positions.
While I believe this was a sincere attempt to help address Senate
gridlock, these nominations are rarely the reason for obstruction in
the Senate. Instead of trying to fix a problem that doesn't exist, we
should focus on the real issues that prevent this body from doing the
work that is expected of us.
I had hoped that last year's Rules Committee hearings were the
first step in making some real reforms to the Senate as an institution.
Those hearings were not about what nominees should require Senate
confirmation, but the more fundamental issue of how the Senate confirms
nominees and passes legislation. We took a good look at our rules--how
they incentivize obstructionism . . . how they inhibit, rather than
promote debate . . . and how they prevent bipartisan cooperation.
But the next step should have been to implement common sense
reforms to meet these challenges--reforms that will restore the
uniquely deliberative nature of this body, while also allowing it to
function more efficiently. I don't think S. 679 and S. Res. 116 are the
answer to the problems we identified in last year's hearings.
Senate Resolution 10, the reform package that I introduced in
January, along with Senators Harkin, Merkley, and twenty-three other
cosponsors, was our attempt at addressing the institutional dysfunction
that has infested the Senate over the past few decades. It contained
five reforms that should have garnered broad, bipartisan support.
Unfortunately, enough Senators were not willing to give up a little of
their own individual power in order to make this a better institution
for the country.
The first two provisions in our resolution addressed the debate on
motions to proceed and secret holds. These are not new issues. Making
the motion to proceed non-debatable, or limiting debate on such a
motion, has had bipartisan support for decades and is often mentioned
as a way to end the abuse of holds.
I was privileged to be here for Senator Byrd's final Rules
Committee hearing, where he stated:
``I have proposed a variety of improvements to Senate Rules to
achieve a more sensible balance allowing the majority to function while
still protecting minority rights. For example, I have supported
eliminating debate on the motion to proceed to a matter . . . or
limiting debate to a reasonable time on such motions.''
In January 1979, Senator Byrd--then Majority Leader--took to the
Senate Floor and said that unlimited debate on a motion to proceed,
``makes the majority leader and the majority party the subject of the
minority, subject to the control and the will of the minority.''
Despite the moderate change that Senator Byrd proposed--limiting
debate on a motion to proceed to thirty minutes--it did not have the
necessary votes to overcome a filibuster.
Efforts to reform the motion to proceed have continued since. In
1984, a bi-partisan ``Study Group on Senate Practices and Procedures''
recommended placing a two-hour limit on debate of a motion to proceed.
That recommendation was ignored.
In 1993, Congress convened the Joint Committee on the Organization
of Congress. The Committee was a bipartisan, bicameral attempt to look
at Congress and determine how it can be a better institution.
Senator Pete Domenici, my immediate predecessor, was the co-vice
chairman of the committee. Senator Domenici stated at a hearing before
the Joint Committee, ``If we abolish [the debatable motion to proceed],
we have gone a long way to diffusing the validity of holds.''
But here we are again today--more than thirty years after Senator
Byrd tried to make a reform that members of both parties have agreed is
necessary--and it still has not been implemented.
The third provision in our resolution was included based on the
comments of Republicans at last year's Rules Committee hearings. Each
time Democrats complained about filibusters on motions to proceed,
Republicans responded that it was their only recourse because the
Majority Leader fills the amendment tree and prevents them from
offering amendments. Our resolution provided a simple solution--it
guarantees the minority the right to offer amendments.
The fourth provision of our resolution addressed the abuse of the
filibuster. Senator Merkley worked extensively with the Parliamentarian
and CRS to devise a rule that would make the filibuster real again. The
concept is simple--if a senator wants to prevent the rest of the Senate
from ending debate on a bill or nominee, he or she must actually
continue to debate.
Finally, our resolution reduced the post-cloture time on
nominations from thirty hours to two. Post cloture time is meant for
debating and voting on amendments--something that is not possible on
nominations. Instead, the minority now requires the Senate use this
time simply to prevent it from moving on to other business.
Our resolution was an attempt to make actual debate a more common
occurrence. It would bring our legislative process into the light, and
hopefully, it would help restore the Senate's role as the ``world's
greatest deliberative body.''
I planned to offer amendments to S. Res. 116 that would have
included some of the provisions from our January resolution. I believe
these amendments would have improved the resolution and made it a much
stronger reform package. I have withdrawn these amendments in order to
expedite the committee process, but have every intention of offering
them when we consider the bill on the floor.
I also wanted to offer an amendment to address a concern raised by
Senator Portman in the Homeland Security markup for S. 679. That
amendment would have preserved the Senate-confirmed status of the chief
financial officers within our nation's major federal departments and
agencies, including the major branches of the military. CFOs are
responsible for some of the least glamorous but most important work
necessary to ensure taxpayer dollars are well-spent. By law, these
departmental CFOs oversee all financial management activities relating
to all programs and operations of their agency.
At the Homeland Security & Government Affairs Committee mark-up
last month, Senator Portman offered an amendment to S. 679 that would
have retained the requirement of Senate confirmation for these
positions. That amendment led to an offer of a simple compromise: these
top financial management executives would remain Senate-confirmed
positions, but would be moved to the streamlined confirmation process
that the Rules Committee is now considering.
Chairman Lieberman and Ranking Member Collins expressed tentative
support for this approach, but asked that Senator Portman withdraw his
amendment until the Rules Committee acted on this compromise proposal.
On April 14, Senators Lieberman and Collins wrote Chairman Schumer and
Ranking Member Alexander to ask that the Rules Committee consider
placing chief financial officers on the expedited confirmation track. I
had hoped we would consider this amendment today, but it will also have
to wait until the bill is on the floor.
I believe holding markups for important legislation is an important
part of the legislative process in the Senate and it is the
responsibility of each committee to carefully look at the legislation
within its jurisdiction. Unfortunately, most committees no longer
fulfill that responsibility, which is just one more indication that the
Senate no longer functions as our founders intended.
I have withdrawn my amendments, but I do plan to offer them, and
probably several others, when the resolution goes to the floor. I hope
at that time we can have an open and honest debate on this legislation
and consider amendments to improve the resolution.
I ask that the April 14 letter from Senators Lieberman and Collins
to Senators Schumer and Alexander be included with my statement in the
hearing record.
Thank you again, Mr. Chairman.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
HEARING ON NOMINATION OF GINEEN BRESSO, THOMAS HICKS, AND MYRNA PEREZ
TO BE MEMBERS OF THE ELECTION ASSISTANCE COMMISSION
----------
WEDNESDAY, JUNE 29, 2011
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:07 a.m., in
Room SR-301, Russell Senate Office Building, Hon. Charles E.
Schumer, Chairman of the committee, presiding.
Present: Senators Schumer, Alexander, Cochran, and Blunt.
Staff Present: Jean Bordewich, Staff Director; Jennifer
Griffith, Deputy Staff Director; Jason Abel, Chief Counsel;
Veronica Gillespie, Elections Counsel; Adam Ambrogi,
Administrative and Legislative Counsel; Carole Blessington,
Assistant to the Staff Director; Josh Brekenfeld, Professional
Staff; Sonia Gill, Counsel; Lauryn Bruck, Professional Staff;
Lynden Armstrong, Chief Clerk; Jeff Johnson, Staff Assistant;
Mary Suit Jones, Republican Staff Director; Shaun Parkin,
Republican Deputy Staff Director; Paul Vinovich, Republican
Chief Counsel; Michael Merrell, Republican Elections Counsel;
and Trish Kent, Republican Professional Staff
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. The Committee on Rules and Administration
will come to order. We are going to try to finish this in
record time. So, we are going to ask everybody to be very
brief. In fact, I am going to start with myself.
I have an opening statement. I am going to put it in the
record. The hearing, as you know, is a confirmation hearing of
the nomination of three nominees to the Election Assistance
Commission. We know how important the EAC is.
And so, I am going to put my entire statement in the
record. I know that Senator Alexander very much wants to make
an opening statement, and so, I am going to defer to him.
With unanimous consent, my entire statement is entered into
the record.
[The prepared statement of Chairman Schumer included in the
record:]
OPENING STATEMENT OF SENATOR ALEXANDER
Senator Alexander. Thanks, Mr. Chairman. I am going to be
reasonably succinct----
Chairman Schumer. You do not have to be succinct.
Senator Alexander. I need to make my statement.
Chairman Schumer. I understand. Please.
Senator Alexander. It is good to see you and good to see
Senator Cochran.
Mr. Chairman, with all due respect to the nominees before
us, I think this hearing is premature. Instead of considering
new nominees, we ought to be abolishing this commission.
The Election Assistance Commission was constituted in 2003.
Since then, our Committee has not had one single oversight
hearing on it. My predecessor at this Committee, Senator
Bennett, wrote in 2009 to ask for an oversight hearing. We did
not have one. I wrote in March to suggest one. We did not have
one.
Our government is borrowing 40 cents out of every dollar we
spend. We have a terrific finance problem with the Federal
Government. Yet today, we are considering new appointments to a
commission that should cease to exist.
Now, here is why I say that. This commission was created by
the Help America Vote Act in 2002. The Election Assistance
Commission was authorized for three years and given certain
tasks. The primary task of the commission was to distribute
federal payments to the states to help them upgrade their
voting systems. $3.2 billion was appropriated for these
statements, and it has been distributed.
Given our current fiscal situation, it is very unlikely any
more federal money is forthcoming. The current Administration
seems to agree with that. They have asked for no funds for this
purpose in either of their last two budgets.
The commission was also directed to develop voluntarily
voting system guidelines and a testing and certification
program for voting machines. The actual work involved in this
is performed by the National Institute of Standards and
Technology.
Finally, the commission was to act as a clearinghouse to
collect and distribute information on best practices. Yet the
intended beneficiaries of this service do not seem to have much
use for it.
The National Association of Secretaries of State, a
bipartisan organization, has twice voted in favor of a
resolution calling for abolition of the commission.
So, we have a situation where we are saying we are the
government, we are here to give you help that you do not want.
The tasks of the commission have now either been completed or
can be performed by more appropriate entities.
The commission did its job. We should thank the commission
and the staff for their service. But if the completion of their
appointed task is not enough of a reason to close it down, the
commission also appears to have serious management problems.
Though its mission has dwindled, its staff has grown. The
commission had 20 staff in 2004. Last year it had 64 staff. The
average salary of the staff, according to Congressman Greg
Harper, is over $100,000. Why is more staff needed, Mr.
Chairman, for less work?
This year's budget submission for the commission proposes
spending $5.4 million to manage $3.4 million worth of programs.
Now, does this make any sense? When the cost of the overhead
and staff salaries exceeds the amount of a program, clearly
something is wrong.
Finally, the commission has an unfortunate history of
hiring discrimination. The office of special counsel found that
they engaged in illegal discrimination when, during a search
for a general counsel, an employment offer was made and then
withdrawn when the Democratic commissioners discovered the
applicant was a Republican.
The result was a substantial settlement being awarded to
the applicant, forcing taxpayers to bear the cost. It has been
reported that in subsequent interviews a similar thing has
happened within appropriate questions about military service.
Mr. Chairman, I recognize the nominees before us are not to
blame for this incident but that is beside the point. Even if
we were to assume that the nominees could right the ship and
correct the problems, the question would remain where would the
ships sail and why make the trip?
Do we even need the commission? With its main job completed
and with a big budget problem in Washington, why could not its
remaining duties be better performed somewhere else?
Can a government program once created ever be terminated?
Mr. Chairman, Ronald Reagan once said, ``A government bureau is
the nearest thing to eternal life we will ever see on this
earth.''
Should we not try, using this opportunity, to prove
President Reagan wrong?
Thank you, Mr. Chairman.
Chairman Schumer. Thank you, Mr. Ranking Member. That is
sort of a different issue than moving nominees, whether the
commission should continue.
I appreciate your views, and we will continue the
discussion on that. I have heard carefully what you said. We
should not gainsay that the commission has done some good
things - testing voting equipment, dealing with butterfly
ballots which created all the kinds of problems, and
establishing the military heroes grants which help injured
combat veterans vote.
But it is an issue that we will discuss. I understand your
strong feelings and I understand the need to cut back and I
understand the need for having the kinds of functions the
commission does be done somewhere. The commission has done a
good job.
But with that, we both believe, even though we may not
agree on the commission, we both believe that nominees should
move quickly. And so we will move forward with our nominees if
that is okay with the other members here.
Senator Cochran. Mr. Chairman.
OPENING STATEMENT OF SENATOR COCHRAN
Chairman Schumer. Senator Cochran.
Senator Cochran. I would like to join my colleague from
Tennessee and express my concerns that we are walking into an
area where there is some uncertainty. And in fairness to the
nominees who are before the Committee for confirmation, I hope
we can resolve this issue.
I notice one of the Congressional members from my State has
joined in introducing legislation in the other body that would
eliminate the commission, and I noticed that it is expected
that if we did, we would save about $33 million in taxpayer
funds.
And the question is a legitimate question that I think the
distinguished Senator from Tennessee has raised.
Chairman Schumer. It is a legitimate question and we will
figure out a forum to deal with that question.
Senator Cochran. With that assurance, I will shut up and
let you do what you want to do.
Chairman Schumer. Senator Blunt.
OPENING STATEMENT OF SENATOR BLUNT
Senator Blunt. Mr. Chairman, I heard your last statement
and I was just going to ask if that was our intention, but I
would like to look at this as well.
When I was the Secretary of State of Missouri, I was the
chief election official of the state for eight years. In 2010,
I know many of the Secretaries of State called for the
elimination of the Election Assistance Commission agency and
the President has not requested any grant funds to be
distributed which was one of the early and maybe most
successful purposes of the agency.
I join my colleagues in looking forward to your decision to
call a hearing to talk about the future of this agency. This
request implies nothing about the quality of the nominees, but
just the purpose of the agency.
Chairman Schumer. I did not agree to have a hearing. I just
said we would continue our discussions. We will.
Senator Blunt. Well, I was optimistic in the way I heard
you say that.
Chairman Schumer. I did not say we would not. I did not say
we would.
Senator Blunt. I tend to be optimistic anyway, Mr.
Chairman. That is why I think we are going to get things done.
Chairman Schumer. Okay. Thank you. And you are a fine
member of this Committee and I appreciate your optimism. Okay.
Let me introduce the three witnesses here. We have three
nominees. Our current commissioner, Gineen Bresso, was
recommended by Speaker Boehner and has been an EAC commissioner
since 2008. Thank you for your service, and I am sure my
colleagues join me in that. The comments about the need for the
commission is no reflection on the job that you have done.
Tom Hicks is recommended by Leader Pelosi, and he has
served as Senior Elections Counsel for the House Administration
Committee. Myrna Perez, recommended by Majority Leader Reid,
has an impressive legal career with degrees from Yale, Harvard,
and Columbia. In her current job she is a counsel at the
Brennan Center for Justice.
So, we are going to swear the nominees in. Please stand. I
ask the nominees to raise their right hand. Do you swear that
the testimony you are about to provide is the truth, the whole
truth, and nothing but the truth, so help you God?
Ms. Bresso. I do.
Mr. Hicks. I do.
Ms. Perez. I do.
Chairman Schumer. Thank you. Please be seated.
Now, your statements are going to be put in the record.
They are available to members.
Because we want to expedite these hearings, I am going to
take the liberty, with the permission of my colleagues here, to
go right ahead to questions, if that is okay with you, Mr.
Chairman, Mr. Ranking Member. He is almost the chair. We work
in such a bipartisan way that I did not want to call him the
chairman----
Senator Alexander. I just hope to be the Chairman.
Chairman Schumer. So, with that, let me ask two questions
to each of you and then we will go to my colleagues.
I am interested in learning what you each want to focus on
as commissioner of the Election Assistance Commission, number
one.
And second, there has been some criticism of the EAC in
recent years regarding management and personnel issues. What
measures would you take to improve the administration of the
agency?
First, Ms. Bresso, then Mr. Hicks, and then Ms. Perez. Then
we will call on my colleagues.
TESTIMONY OF GINEEN BRESSO, NOMINATED TO BE A MEMBER OF THE
ELECTION ASSISTANCE COMMISSION
Ms. Bresso. Thank you, Chairman Schumer.
Certainly all of the HAVA mandates that the commission has
to fulfill are important, but I believe what I would like to
focus on certainly is the testing and certification of our
voting systems.
We do have systems that are in the field; and through our
quality monitoring program, we are going to have to observe and
see how they do perform.
When I was chair, during my tenure, we did not have any
systems that were certified prior to my coming to the EAC. But
during that time, I worked with my colleagues and we had
certified four systems; and since then, we have certified an
additional two systems and also two modifications.
So, I believe that is very important for the upcoming
election cycle.
[The prepared statement of Ms. Bresso is included in the
record:]
Chairman Schumer. Mr. Hicks.
TESTIMONY OF THOMAS HICKS, NOMINATED TO BE A MEMBER OF THE
ELECTION ASSISTANCE COMMISSION
Mr. Hicks. Thank you, Chairman Schumer.
I think that there are a couple of things that the
commission can still focus on. One being its clearing house
function. Elections, as you know, happen every two years, and
those elections might have problems in them. That is not to say
that the commission should be abolished.
I believe that the commission can still function very well
in terms of getting information out to the state and local
officials who are very adamant in their decision to keep the
agency alive.
The NASS decision was not necessarily unanimous. There were
secretaries of states, particularly Mark Ritchie from
Minnesota, who voiced his opinion of the commission being still
available.
The testing labs, I believe, function very well and I
believe that the functions of that program should remain with
the EAC.
Mr. Harper's bill would transfer most of these functions
over to the FEC, I think, should not be passed. I should also
express that these are my opinions and not of my bosses who
currently employ me.
The bill itself would move particular items over to the
FEC. The FEC has been viewed by many as an agency that is
deadlocked on the simplest of things. Some say that sometimes
they cannot even agree on what day of the week it is.
So, I do not believe that the EAC should be abolished. I
think that it can still function really well. I think that the
state and locals have voiced their opinion. I think that the
civil rights groups have voiced their opinion, and I believe
that the administration of elections which is different than
the financing of elections which the FEC holds, makes these two
agencies completely different and, therefore, they should
remain different.
[The prepared statement of Mr. Hicks is included in the
record:]
Chairman Schumer. Thank you, Mr. Hicks.
Finally, Ms. Perez.
TESTIMONY OF MYRNA PEREZ, NOMINATED TO BE A MEMBER OF THE
ELECTION ASSISTANCE COMMISSION
Ms. Perez. Thank you, Senator.
At this time, I would not feel comfortable committing to a
firm list of priorities without talking to election
administrators and seeing what it is that they need. But I
think my focus would be on three things.
One is growing confidence in the agency. It is very, very
important that election administrators, Congress, and the
public feel like they are getting expert service from the EAC,
and that Congress and the public feel like taxpayers dollars
are being well spent.
I would also like to focus on making sure that the voting
system standards were the gold standard for voting system
certification, and I think this is one area where it is
possible for there to be economies of scale.
It should not be the case that every state has to expend
what could be prohibitive resources just to make sure that our
voting systems are safe and reliable; and by having one agency
that can collect all of the information and be accessible to
all of the vendors so they know what sort of benchmarks they
have to hit, I think will produce efficiencies of scale and
economies of scale.
The last thing I think I would like to focus on is that of
making sure that the Agency is ahead of the cutting edge
technical and legal issues that are facing election
administrators today.
Election administration is dynamic. The technology is
changing at a rapid pace and the laws are changing at a rapid
pace. And election administrators have to do a great deal of
work under very challenging situations including resource
challenges.
And if the agency is operating well and can predict what
those issues are and figure out an effective way to disseminate
and collect that information, I think that the
comprehensiveness of its scope and the fact that it has a
nationwide mission will allow it to be beneficial to the
election administrators.
I would like to note in my final moments that I find it
deeply disturbing that NASS has lost its confidence in the EAC,
and if I am confirmed, I will talk to them. I will try to
figure out where the disconnect is and try to make sure that
the EAC provides them the best customer service available.
[The prepared statement of Ms. Perez is included in the
record:]
Chairman Schumer. I thank all three of you for your good
and succinct answers. We are going to try to finish by 10:30.
So, I would ask my colleagues for brevity. We can have
statements submitted into the record, of course, and other
questions for the nominees. We will have ample questions.
But I want to call on my friend and colleague, Senator
Alexander.
Senator Alexander. Thanks, Mr. Chairman. I would just ask
one question. I would observe, I think these nominees are very
well qualified, and you and I have just completed an extensive
review of all the positions that the Senate advises and
confirms and I think we ought to find a commission upon which
they could serve where they have something to do.
So, none of what I am saying has any reflection upon the
three of them. I think they are exceptionally talented people.
My question is for each of you. Our election system leaves
responsibility for running elections in the hands of state and
local officials. The Help America Vote Act provided some
federal assistance, some minimal federal requirements; but it
basically left the system of elections in state and local
hands.
Do you see that as a good or bad thing? Do you think the
elections would benefit from more federal control? Do you think
the EAC would be more effective if it had more power?
Chairman Schumer. Ms. Bresso.
Ms. Bresso. Certainly. I agree that the elections should be
administered on the state level as you had articulated; and
certainly, you know, just traveling around and talking to
election officials, each state is different, each locality is
different. There is not a ``one size fits all'' approach. So to
the extent that EAC can provide assistance to states and
localities with the administration of elections, I believe that
would be most beneficial.
Chairman Schumer. Thank you for your good and succinct
answer.
Mr. Hicks
Mr. Hicks. The Help America Vote Act was crafted in a
bipartisan manner back in 2001 and 2002. There was a lot of
blood, sweat, and tears that came up with that piece of
legislation. If Congress should decide that it should be change
is when I will change with it.
Chairman Schumer. Thank you, Mr. Hicks.
Ms. Perez.
Ms. Perez. Our Constitution sets forth a very important and
protected role for the states in the administration of
elections, and I very much believe that states have a very
important role to play. I think that state and local election
administrators need resources, they need assistance, they need
information being sent to them, and Congress made a
determination that a federal agency could do that through a
number of very delineated but very important statutory
functions.
I think that we as voters are best served if the Election
Administration Commission focuses on the nuts and bolts of
election administration and focuses on the core activities that
Congress set forth for the Agency in the Help America Vote Act.
Chairman Schumer. Thank you, Senator Alexander.
Senator Cochran.
Senator Cochran. Mr. Chairman, let me ask Ms. Bresso.
You have previously expressed some concerns about the
budget submitted by the EAC. What role do you see the
commissioners playing in the formation of a budget submission
and what, if any, changes would you recommend be reviewed by
the Committee during that process?
Ms. Bresso. Currently, the commissioners play a role in the
budgets but it is more at the last part of the budget process.
Under our roles and responsibilities document that was
adopted through a consensus vote prior to my tenure, the
commission had delegated the authority to the executive
director to develop the agency's financial plan.
And certainly as commissioners, being appointed to the
commission and having accountability to the taxpayers and
Congress, we need to play a much more active role, and I want
to work with my colleagues here to make sure that we do that
moving forward.
Senator Cochran. Thank you very much.
Thank you, Mr. Chairman.
Chairman Schumer. Thank you. Now, since we have a few extra
minutes because of everyone's brevity, do any of the witnesses
want to say anything else that you did not get a chance to add?
Do not feel obligated but take the opportunity.
Mr. Hicks. Thank you, Chairman Schumer.
I would just like to acknowledge the presence of my
mother----
Chairman Schumer. Isn't that nice.
Mr. Hicks. --who flew down from Boston to be here today.
Chairman Schumer. Would she please stand so we can
acknowledge her as well. Hi. I am sure you are proud of your
son, Ms. Hicks.
[Applause.]
Mr. Hicks. The only other thing that I would like to add is
that my children were not able to make it here today. They will
be watching this via the webcast so I just wanted to
acknowledge the three of them.
Elizabeth, who is seven. Megan, who is four, and Edward,
who is two. Thank you.
Chairman Schumer. Well, God bless them, and I am sure they
are proud of their dad as we all are.
Ms. Perez.
Ms. Perez. If I may do the same. My husband Mark Muntzel,
members of my family, members of my church family, longtime
friends, classmates, colleagues are here today to provide their
love and support. I am truly blessed.
Chairman Schumer. Great. Thank you. Would they like to,
would at least your husband and immediate family like to stand
so we can acknowledge them and thank them.
Thank you both for being here.
That was nice. Again I want to repeat what Lamar Alexander
said. You are all three very well qualified. There is
discussion as to whether the EAC should continue as you have
heard, and that is a discussion we will continue. I promise
that to Senator Alexander, but that issue is not a reflection
on the quality of either your service, Ms. Bresso, or your
nominations, Mr. Hicks and Ms. Perez. You are outstanding
people and I am glad you are looking to work in our government.
So, let me thank the nominees for testifying this morning.
The record will remain open for five business days for
additional questions and statements.
The hearing is adjourned.
[Whereupon, at 10:29 a.m., the Committee adjourned.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. 2219, THE DEMOCRACY IS STRENGTHENED BY CASTING LIGHT ON SPENDING IN
ELECTIONS ACT OF 2012 (DISCLOSE ACT OF 2012)
----------
THURSDAY, MARCH 29, 2012
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The committee met, pursuant to notice, at 10:07 a.m., in
Room 301, Russell Senate Office Building, Hon. Charles E.
Schumer, Chairman of the committee, presiding.
Present: Senators Schumer, Feinstein, Durbin, Tom Udall,
Leahy, Alexander, and Blunt.
Staff Present: Jean Bordewich, Staff Director; Josh
Brekenfeld, Deputy Staff Director; Adam Ambrogi, Chief Counsel;
Veronica Gillespie, Elections Counsel; Julia Richardson,
Counsel; Nicole Tatz, Professional Staff; Lynden Armstrong,
Chief Clerk; Jeff Johnson, Staff Assistant; Mary Suit Jones,
Republican Staff Director; Shaun Parkin, Republican Deputy
Staff Director; Paul Vinovich, Republican Chief Counsel;
Michael Merrell, Republican Counsel; Lindsey Ward, Republican
Professional Staff; and Rachel Creviston, Republican
Professional Staff.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. Good morning and the Rules Committee will
come to order.
I would like to thank my friend, Ranking Member Alexander
for joining us at this hearing and all of my colleagues to
discuss the DISCLOSE Act of 2012, which our colleague Sheldon
Whitehouse introduced last week.
The Supreme Court's Citizens United decision, in
conjunction with other cases, has radically altered the
election landscape by unleashing a flood of unlimited, often
secret, money into our elections. In response to that
disastrous decision, we introduced the DISCLOSE Act of 2010,
which would have increased transparency by requiring full
disclosure of the real sources of money behind political
advertising. The House passed it. The President was ready to
sign it. But in the Senate, it failed to get cloture by one
vote.
Now the problem is no longer hypothetical. The public is
now living with the aftermath of the Citizens United decision
every time they turn on their TV sets. An endless stream of
negative ads is now drowning out all other voices, including
the candidates themselves. The events of the 2010 election
cycle and what we have seen so far in 2012 have confirmed our
worst fears about the impact of Citizens United and subsequent
court decisions.
Two years ago, we were warned about these harmful effects,
but the results are even worse than expected. Just this
morning, we woke up to the breaking story reported by Bloomberg
News that major corporations, including Chevron and Merck, gave
millions to groups who ran attack ads in the 2010 elections and
no one knew about it until now. That means voters two years ago
were left totally in the dark about who paid for the attack ads
hitting the airwaves.
The trend is disturbing. According to the Center for
Responsive Politics, a study they did showed that the
percentage of campaign spending from groups that do not have to
disclose their donors rose from a mere one percent in 2006 to
47 percent in 2010. We can only imagine by what percentage it
will grow by the end of 2012, almost certainly over 50. So more
than half the ads now run in America have no disclosure. That
is incredible and awful, in my opinion.
And the money is coming overwhelmingly, of course, from the
wealthiest Americans, as you would expect. A recent study in
Politico found that 93 percent of the money that was
contributed by individuals to super PACs in 2011 came in
contributions of $10,000 or more. And here is the most
astounding thing about Politico's study. Half of that money
came from just 37 donors. Half of the money in the super PACs
came from 37 donors. Is that democracy?
Even more worrisome, we are increasingly seeing
contributions to super PACs from nonprofit organizations,
groups that can use the tax code to hide their sources of
money, and from shadowy shell corporations. Some of these
groups are nothing more than a post office box in the middle of
an office park.
By now, it should be clear to everyone that better
disclosure is desperately needed. The 2012 DISCLOSE Act
introduced by Sheldon Whitehouse, our Rules Committee colleague
Senator Tom Udall, and myself, among others, is already
supported by 40 Senators. It is a bill that should be
acceptable to people of every stripe. That is how it was
designed. That is how Senator Whitehouse and those of us
working with him designed it.
The previous bill imposed bans on government contractors
and foreign-owned corporations, but those bans have been taken
out, even though most of the sponsors thought it was the right
thing to do. The 2010 legislation also required reporting
donations of $600, but that threshold has been raised to
$10,000 because, as we have seen, these huge donations dwarf
that amount and make a donation of $100 seem irrelevant.
The new bare bones DISCLOSE Act has two key components,
disclosure and disclaimer, and it is very simple. Disclosure
means outside groups who make independent expenditures in
electioneering communications should disclose all their large
donors in a timely manner--all their large donors. The bill
includes a way to drill down to the original source of money in
order to reveal those who are using intermediaries as a conduit
to obscure the true funders. Through this covered transfer
provision, even the most sophisticated billionaires will find
it difficult to hide behind a 501(c) organization or shell
corporation.
Disclaimer means that voters who are watching the political
ad will know who paid for it. Under current law, candidates are
required to stand by their ads. Why should outside
organizations engaging in this same kind of political activity
be any different? The 2012 DISCLOSE Act would make super PACs,
501(c)s, 527s, corporations, and labor unions identify their
top five funders in their TV ads and top two funders in radio
ads. The leader of the organization would have to stand by the
ad, just like candidates must do.
Transparency is not just a Democratic priority. My
colleagues on both sides of the aisle have declared their
support for greater disclosure as a way to prevent corruption.
And eight of nine Supreme Court Justices in the Citizens United
decision supported disclosure. The potential for corruption in
the post-Citizens United era is all too clear. It is time to
get serious about full transparency. This bill would do that.
That is why we are holding this hearing: to examine the
need for better disclosure and to discuss this particular
legislation. And before we turn to our distinguished panel of
experts, I want to ask my good friend Ranking Member Alexander
and any other member who is here if they would like to make
opening statements. As is the usual practice, I would ask that
statements by members and witnesses are limited to five
minutes. So without further ado, let me call on Senator
Alexander.
OPENING STATEMENT OF SENATOR ALEXANDER
Senator Alexander. Thank you, Mr. Chairman. It is good to
be with you on this beautiful spring day, and this hearing is
as predictable as the spring flowers. In the middle of an
election, my friends on the other side of the aisle are trying
to change the campaign finance laws to discourage contributions
from people with whom they disagree, all to take effect by July
1, 2012. I deeply appreciate the sympathy that the Chairman is
showing for the victimized Republican primary candidates
Santorum and Gingrich in this whole process and I am sure they
would want me to thank you for that, as well.
This is a quickly called hearing----
Chairman Schumer. Their thanks are accepted with gratitude
and humility.
Senator Alexander. Thank you. A quickly called hearing,
quickly drawn up bill. Most of the enthusiasm for this hearing
and this bill comes, as the Chairman indicated in his remarks,
because of the Citizens United legislation, which basically
says that rich non-candidates and corporations have the same
rights rich candidates have to spend their money in support of
campaigns.
This legislation is in the name of full disclosure. I am in
favor of full disclosure, but there is nothing in the
Constitution about full disclosure. There is something in the
Constitution about free speech. I often go by the Newseum down
the street. Congress shall make no law abridging the freedom of
speech, it says on the wall. The provisions in this bill chill
and discourage free speech.
There is a way to have full disclosure and free speech, and
that is to take all the limits off campaign contributions. The
problem is the limits. These new super PACs exist because of
the limits we have placed upon parties and contributions. Get
rid of the limits on contributions and super PACs will go away
and you will have full disclosure because everyone will give
their money directly to the campaigns and the campaigns must
disclose their contributions in ways that we have already
agreed do not discourage free speech.
I have done some research in preparation for this and I
found an especially compelling statement before this committee
that was rendered just exactly 12 years ago today, March 29,
2000. Some of you were actually here that day. It was given by
an obscure former Governor who had run for President and who
had permanently retired from politics, and he came before this
committee and these were the words that he said. ``I have come
to Washington to argue one practical proposition, that the
$1,000 individual contribution limit in our Presidential
nominating system makes it virtually impossible for anyone
except the front runner or a remarkably rich person to have
enough money to run a serious campaign. This has a number of
bad effects for our democracy. It limits the voters' choices
and the opportunity to hear more about the issues. It gives
insiders and the media more say, outsiders less. It protects
incumbents, discourages insurgents. It makes raising money the
principal occupation of most candidates, which in turn makes
campaigns too long. The $1,000 limit was put in place in 1974
after Watergate to reduce the influence of money in politics.
It has done just the reverse. I have also come with this
practical solution. Raise the limit.'' That obscure retired
former Governor was me.
And a few years earlier, Senator McCarthy, a better known
retired politician, came before this committee and said he
never would have been able to challenge Lyndon Johnson if
Stewart Mott and others who agreed with him had not given him
so much money in the 1968 campaign.
Now, the reason I am talking about limits is because if we
took the limits off, we would solve the disclosure problem.
Rich candidates can continue their campaigns. The super PACs
have actually permitted candidates like Gingrich and Santorum
and others to continue to run. Presidential races before this
year were like the Patriots lose the first three games, we tell
them to get out of the race. If Tiger Woods shoots 40 on the
front nine, we say, end the Master's. In the NFL and at the
Master's, you play all the way through to the end. Having money
is what you need to play all the way through to the end. And if
Senator Kerry and Steve Forbes have their own money, then
others ought to be able to contribute their money.
So, Mr. Chairman, as long as we have a First Amendment to
the Constitution, individuals and groups have a right to
express themselves. And the best way to combine free speech
with full disclosure in a way that does not chill free speech
is to take off all the limits which would cause most
contributors to give to campaigns. It would drop the super
PACs. And it would make this legislation, which chills free
speech, completely unnecessary.
Thank you, Mr. Chairman.
Chairman Schumer. Thank you, Senator Alexander.
Senator Feinstein.
OPENING STATEMENT OF SENATOR FEINSTEIN
Senator Feinstein. Mr. Chairman, I thank you very much.
Given what we have seen in the Republican primary this
year, I really believe we must try to pass the DISCLOSE Act. In
2010, we came close to passing it and it looks like we need
just one additional vote to move the bill forward now.
This new Act is a critical step, really, to ensure that
corporate dollars will not flow in the dark to one candidate
against another, but instead, our election process will regain
the transparency it has lost after Citizens United.
I find this whole hidden, shadowy world of the super PAC to
be really discouraging, and I suspect it is going to have a
very discouraging impact on candidates that have not yet run
for office but might be considering to run for office. There is
really no way the average person, new candidate, can fight it.
So if a company does not like what you are doing, whether it is
a big bank and you are for financial reform, go out and get
this person with untold, unknown millions of dollars. I do not
think it is the American method of electing candidates.
I think this is the first step forward. I was really
surprised at the Supreme Court, and I want to thank the author
and I want to thank you and hopefully we can move on with this.
Chairman Schumer. Thank you, Senator Feinstein.
Senator Blunt.
OPENING STATEMENT OF SENATOR BLUNT
Senator Blunt. Thank you, Mr. Chairman. Thank you for
holding this hearing today. I appreciate the opportunity to
discuss the DISCLOSE Act.
I have some concerns with the bill. As a former Secretary
of State of Missouri, where I also served as the chief election
official, I am particularly interested in policies that affect
elections. I believe this bill would place additional burdens
on nonprofits as they seek to advocate for public policies. I
am also concerned, as Senator Alexander was, about the First
Amendment challenges that I believe this bill would present.
Before we consider adding new restrictions, I think we
would be well served to carefully examine our current laws and
ensure they are having their intended effect. Mr. Chairman, I
would suggest that might be a good topic for another hearing,
particularly in this election year, to look at the laws we have
on the books now.
I am pleased we are having this hearing. I look forward to
hearing from the witnesses and thank you for holding it, Mr.
Chairman.
Chairman Schumer. Thank you, Senator Blunt.
Senator Durbin.
OPENING STATEMENT OF SENATOR DURBIN
Senator Durbin. Chairman Schumer, thank you for the
hearing. I support the DISCLOSE Act.
We are not talking about super PACs. We are talking about
super secret PACs, and the question is whether there ought to
be any transparency so the people of America know who is paying
for the information that is being shoveled at them.
We have seen a dramatic increase in these independent
expenditures to the point where mere mortals who dare run for
office have to wonder whether they are going to be overrun by
some super PAC or some individual or some special interest
group, regardless of the merits of their campaign or what the
voters may care for in their district.
And I think what we are doing here is introducing an
element into the body politic which is fundamentally
corrupting. Senators who have to wonder whether this morning's
speech on the floor or this afternoon's vote or tomorrow's
amendment just might irritate a Los Vegas casino magnate, or
two billionaire brothers who made a fortune in oil, or a
retired plutocrat lounging in Jackson Hole, because tomorrow,
the world may change for you.
We have seen candidates in this race already for the
Senate, for reelection, with more than $5 million being spent
by March before the election in negative ads by super PACs in
their States. That is a phenomena which is not conducive to an
active, positive, and productive debate among voters in this
country about where this country should go and how it should
move forward.
And now, for something totally different, I support the
DISCLOSE Act, but I really believe that we need to get to the
heart of the matter, and that is why I have introduced the Fair
Elections Now Act, public funding. States as diverse as Maine
and Arizona have voted by referendum to move to public funding.
Take the special interests and the fat cats out of the picture.
Shorter campaigns, less money spent, direct contact with voters
instead of sitting for endless hours on a telephone begging for
money from strangers, that is what they think is the right
thing for the future of their States. I think it is the right
thing for the future of this country.
Major reform, unfortunately, often requires a major
scandal. Sadly, this year's campaign for President is building
up to a major scandal when it comes to fundraising and the
amount of money spent. Will it be enough? Will it be the
breaking point for real change? I hope that this bill passes. I
hope the DISCLOSE Act starts basically lifting the veil on some
of the expenditures that are taking place. But we need to step
beyond this or we run the risk of dramatically changing this
democracy which we all love.
Chairman Schumer. Thank you, Senator Durbin.
I just want to thank particularly Senator Udall for being
here. He has been an active member of the task force, has
introduced legislation, which does not come before this
committee, it comes before our most junior member's committee--
--
[Laughter.]
Chairman Schumer [continuing]. Chairman Leahy, which would
undo Buckley v. Valeo, which is the whole decision that started
us in this somewhat convoluted way of dealing with campaign
finance reform and has been a real leader here. So we thank him
for coming and call on him for an opening statement.
OPENING STATEMENT OF SENATOR UDALL
Senator Udall. Thank you, Chairman Schumer. This is an
important bill and I really appreciate you holding a hearing on
it.
In January 2010, the Supreme Court issued its disastrous
opinion in Citizens United v. FEC. Two months later, the D.C.
Circuit Court of Appeals decided the SpeechNow v. FEC case..
These two cases gave rise to super PACs. Millions of dollars
now pour into negative and misleading campaign ads, and often
without disclosing the true source of the donations.
The Citizens United and SpeechNow decisions renewed our
concerns about campaign finance, but the Court laid the
groundwork for this broken system many years ago. In 1976, the
Court held in Buckley v. Valeo that restricting independent
campaign expenditures violates the First Amendment right to
free speech. In effect, the Court established the flawed
precedent that money and speech are the same thing.
The damage is clear. Elections become more about the
quantity of cash and less about the quality of ideas, more
about special interests and less about public service. I don't
think we can truly fix this broken system until we undo the
flawed premise that spending money on elections is the same
thing as free speech. That can only be achieved if the Court
overturns Buckley or we amend the Constitution. Until then, we
fall short of the real reform that is needed.
But we can still do all that we can in the meantime to make
a bad situation better. That is what we are trying to do with
the DISCLOSE Act. It is not the comprehensive reform that I
would like to see, but it is what is possible under the flawed
Supreme Court precedents that constrain us. The DISCLOSE Act of
2012 asks the basic and imminently fair question, where does
the money come from and where is it going? This is a practical,
sensible measure. It does not get money out of our elections,
but it does shine a light into the dark corners of campaign
finance.
A similar bill in the last Congress had broad support with
59 votes in the Senate and it passed the House. Now that we are
seeing the real impact of Citizens United and SpeechNow
decisions on our elections, the need for this legislation has
become even more apparent. The downpour of unaccountable
spending is wrong. It undermines our political process. And it
has sounded an alarm that is truly bipartisan.
I recall the debate when we considered the DISCLOSE Act in
the last Congress. Many of our concerns then were still
hypothetical. We could only guess how bad it might get. Well,
now we know. Unfortunately, our worst fears have come true. The
toxic effect of Citizens United and subsequent lower court
rulings have become brutally clear. The floodgates to
unprecedented campaign spending are open and threaten to drown
out the voices of ordinary citizens.
Look at what we have seen already, and we are already in
the primary season. Huge sums of money flooding the airwaves.
An endless wave of attack ads paid for by billionaires. The
poisoning of our political discourse. The spectacle of
501(c)(4), so-called ``social welfare'' organizations, abusing
their nonprofit status to shield their donors and funnel money
into super PACs. They spend at will and they hide at leisure.
The American public, rightly so, looks on in disgust. A
recent Washington Post-ABC News poll found that nearly 70
percent of registered voters would like super PACs to be
illegal. Among independent voters, that figure rose to 78
percent. Supporters of super PACs and unlimited campaign
spending claim they are promoting the democratic process, but
the public knows better. Wealthy individuals and special
interests are buying our elections. Our nation cannot afford a
system that says, ``come on in'' to the rich and powerful and
says, ``do not bother'' to everyone else. The faith of the
American people in their electoral system is shaken by big
money. It is time to restore that faith. It is time for
Congress to take back control.
There is a great deal to be done to fix our campaign
finance system. I will continue to push for a constitutional
amendment. We need comprehensive reform. But in the interim,
let us at least shine a light on the money. The American people
deserve to know where this money is coming from and they
deserve to know before, not after, they head to the polls. That
is what the DISCLOSE Act will achieve.
Chairman Schumer, I want to thank you again on this hearing
and look forward to hearing from our witnesses and ask that my
entire statement will be put in the record.
[The prepared statement of Senator Udall included in the
record]
Chairman Schumer. Without objection.
Last, but not least, and we joke about him being the member
way down there, but his knowledge of all of these issues and
the fact that the Judiciary Committee is actively involved in
this issue, particularly on the constitutional side, make us
really glad that he is a member of this committee. It will help
us as we move forward greatly in this effort. So Chairman
Leahy.
OPENING STATEMENT OF SENATOR LEAHY
Senator Leahy. Well, thank you, Mr. Chairman. I appreciate
the fact that we new guys get a chance, also, to speak on this.
I did join with you and the others in reintroducing the
DISCLOSE Act. I think it is an important hearing and I
appreciate you having this. Our efforts to restore transparency
in campaign finance laws were gutted by a narrow conservative
activist majority of the Supreme Court and we cannot wait any
longer. By the stroke of a pen, five Supreme Court Justices
overturned a century of law designed to protect our elections
from corporate spending, ran roughshod over longstanding
precedent, struck down key provisions of our bipartisan
campaign finance laws.
And I remain troubled today that the Supreme Court extended
to corporations the same First Amendment rights of the
political process that are guaranteed by the Constitution to
individual Americans. Corporations are not the same as
individual Americans. Corporations do not have the same rights
or the same morals or the same interests. They cannot vote in
our democracy. If you followed them to logic, you would say,
logically, what the Supreme Court has said about them being
persons, you would say, well, this country elected General
Eisenhower as President. Should we not elect General Electric
as President? We know we have elected a lot of yahoos as Vice
Presidents. I think of people like Millard Fillmore. Why not
elect Yahoo!, a corporation, as Vice President?
The Founders understood this. Americans across the country
long understood that corporations are not people in this
political process. And unfortunately, a very narrow majority of
the Supreme Court apparently did not want to believe what all
Americans have believed.
Like all Vermonters, I cherish our democratic process,
cherish the fact that Vermont has one of the highest turnouts
for elections of any State in the Union. But we ought to be
heard as Vermonters and not be undercut by corporate spending,
but that is exactly what is happening with the waves of
corporate money being spent on elections around the country.
And it will continue to happen until we start to take action by
passing the DISCLOSE Act.
When I cosponsored the first DISCLOSE Act after the Supreme
Court's decision in 2010, I hoped Republicans would join with
Democrats to mitigate the impact of it. We were trying to
restore much of the McCain-Feingold law. All we needed was to
have one Republican vote to restore McCain-Feingold, and we
could have done it. Instead, we did not and they filibustered
it and we needed that one vote and we did not get it.
I think this is going to hurt both parties if they are
unable to do that. It has ensured that the flood of corporate
money flowing from undisclosed and unaccountable sources, such
as Citizens United, would continue. And the Chairman mentioned
the sudden and dramatic effects in the Republican primaries,
but this could happen on either side, this barrage of negative
advertisement from so-called super PACs. I would advise my
colleagues on both sides of the aisle, this uninhibited,
undisclosed spending is hurting every one of us.
It is one of the reasons why the American people are so
turned off on how government is run and politics are run. It is
going to hurt every single person. But more importantly, it is
going to hurt the institutions I cherish. The Congress--it is
going to hurt the ability of Republicans and Democrats to work
together for the best interests of the country.
My State of Vermont is a small State. It would not take
more than a tiny fraction of the corporate money playing the
airwaves to outspend every single Republican and every single
Democrat in our State running for anything. That is wrong. You
know, if the local city council or the zoning board is
considering an issue of corporate interest, what is to stop the
corporations from just wiping them out?
So I would urge my colleagues, whether you are a Republican
or a Democrat, you have an interest in getting government back
where everybody knows who is involved in the government,
everybody knows who is spending in the government, and you have
a chance for the candidates actually to have their voices to be
heard.
I will tell you, if we do not do this, the inability of
good people in either party to come forward is going to stop
and the disrespect of our institutions, including the United
States Supreme Court, will grow, and I can tell you right now,
this country will suffer.
Thank you.
Chairman Schumer. Thank you, and I would like to thank all
of our colleagues for their excellent statements.
Now, we will ask our witnesses to come forward. Okay. I
have a brief introduction for each witness, all of whom are
well known in this area.
Mr. Fred Wertheimer is the President of Democracy 21, which
he founded in 1997. He was previously President of Common Cause
and has served as a Fellow at Harvard University and visiting
lecturer at Yale Law School. He has been a nationally
recognized leader on campaign finance and transparency reform.
He serves as an analyst at CBS News and ABC News.
Mr. David Keating is the President of the Center for
Competitive Politics and former Executive Director of the Club
for Growth. Previously, he served as Executive Vice President
of the National Taxpayers Union and Executive Director of
Americans for Fair Taxation. He founded the SpeechNow.org in
2007.
Rick Hasen is a Chancellor's Professor of Law at the
University of California, the Irvine School of Law, and is the
author of the Election Law Blog. He has written more than four
dozen articles on election law issues and several books,
including the Supreme Court and Election Law. He previously
taught at Loyola Law School in Los Angeles and at the Chicago
Kent School of Law.
Thank you all for coming, gentlemen. Each of your
statements will be read into the record and we would ask you to
limit your opening statements to five minutes each.
Mr. Wertheimer.
STATEMENT OF FRED WERTHEIMER, FOUNDER AND PRESIDENT, DEMOCRACY
21
Mr. Wertheimer. Chairman Schumer and members of the
committee, I am Fred Wertheimer, President of Democracy 21, and
I appreciate the opportunity to testify today in support of the
DISCLOSE Act.
If the opportunity arises later on, I would like to address
Senator Alexander's long-held views about contribution limits,
but I will focus my comments now on the DISCLOSE Act.
The DISCLOSE Act restores a cardinal rule of campaign
finance laws. Citizens are entitled to know who is giving and
spending money to influence their votes. This fundamental right
to know has been recognized for decades by Congress in passing
campaign finance laws and by the Supreme Court in repeatedly
upholding the constitutionality of the laws.
In 2010, more than $135 million in undisclosed, unlimited
contributions were injected into the Congressional race. This
amount is expected to dramatically grow in 2012 in terms of the
undisclosed contributions absent new disclosure requirements.
This has returned the country to the era of the Watergate
scandals, when huge amounts of secret money were spent in
Federal elections. Secret money in American politics is
dangerous money. As the Supreme Court held in Buckley v. Valeo,
disclosure requirements deter actual corruption and avoid the
appearance of corruption.
The DISCLOSE Act would ensure that citizens know on a
timely basis the identities of and amounts given by donors
whose funds are being used to pay for outside spending
campaigns in Federal elections.
New disclosure laws were enacted during the Watergate era
to address the problem of secret money in Federal elections,
and from the mid-1970s until 2010, there was a consensus in the
country and in the Congress among Democrats and Republicans
alike in support of campaign finance disclosure. In 2000, for
example, in response to a disclosure loophole that was allowing
certain 527 groups to spend undisclosed money in Federal
elections, a Republican-controlled Congress acted to close the
loophole. Congress passed the new disclosure legislation with
overwhelming support from Republicans and Democrats. The House
vote was 385 to 39. The Senate vote was 92 to six.
Bipartisan support for disclosure, however, disappeared in
2010. The policy issues have not changed, but the votes have.
We urge the Senate to return to the bipartisan approach of
support for campaign finance disclosure that was the rule for
almost four decades in the Senate and in the House.
These gaping loopholes in the disclosure laws were caused
by a combination of the Citizens United decision and
ineffectual FEC regulations. This problem has been made all the
more worse by groups improperly claiming tax-exempt 501(c)(4)
social welfare organization status in order to keep secret
their donors. We have petitioned the IRS to change their
regulations to deal with eligibility for this tax status and I
would like to enclose those petitions in the record.
[The information of Mr. Wertheimer included in the record]
Chairman Schumer. Without objection.
Mr. Wertheimer. The Citizens United decision was based on a
false assumption that in striking down the corporate ban, there
would be effective disclosure for the independent campaign
expenditures that followed. Justice Kennedy wrote, ``A campaign
finance system that has corporate independent expenditures with
effective disclosure has not existed before today.'' That
effective disclosure still does not exist, and that is what
will be cured by the DISCLOSE Act.
There is no constitutional problem with disclosure and no
constitutional problem with the DISCLOSE Act. The Supreme
Court, by an eight-to-one vote in Citizens United, upheld
disclosure for the kinds of expenditures that are dealt with in
this legislation.
The Court specifically noted the problems that result when
groups run ads while hiding behind dubious and misleading names
and thereby conceal the true source of their funds. The Court
also explicitly rejected the argument that disclosure
requirements can only apply in the case of express advocacy or
the functional equivalent of express advocacy.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Wertheimer included in the
record]
Chairman Schumer. Thank you, and you finished exactly in
five minutes. You are a well rehearsed witness, Mr. Wertheimer,
as well as a very good one.
Mr. Keating.
STATEMENT OF DAVID KEATING, PRESIDENT, CENTER FOR COMPETITIVE
POLITICS
Mr. Keating. Mr. Chairman and members of the committee,
thank you for inviting the Center for Competitive Politics to
present our analysis of S. 2219.
While the stated goal of the bill is to increase disclosure
on spending to elect or defeat candidates, the radical proposal
actually chills speech, forces nonprofits to fundamentally
alter their fundraising and public advocacy efforts, and hijack
25 percent or more of the advertising copy during an election
year if it simply mentions the name of a Congressman. I think
many of these provisions will generate significant First
Amendment questions and will generate litigation that has a
good chance of success.
Now, perhaps the most infamous provision of the McCain-
Feingold bill was its restriction on the ability of groups to
even mention the name of a Congressman running for reelection
within 60 days of a general election or 30 days of a primary.
This bill would stretch that restriction to the entire election
year for members of Congress. That change would wreak havoc on
groups that want to use TV or radio ads to lobby Congress or
candidates.
In my testimony, I give the example of an environmental
group that might want to run an ad urging support for a bill to
regulate carbon dioxide. Under the bill, it might have to
disclose all significant donors, several of whom might even
work for a utility or maybe even a coal company. Now, these
donors might have supported the group's clean water efforts in
response to appeals for funds on that basis, yet had not
thought to earmark their checks. Yet they may be listed on the
ad itself as supporting the ad when, in fact, they do not
support any such thing.
Now, another thing that is not talked about in this bill at
all, from what I can tell, is the disclaimer requirements,
which are just totally ridiculous. Consider, under today's law,
a radio ad that would run right now, when there is no primary
within 30 days. The ad for this group that I list in my
testimony, which I made up, American Action for the
Environment, the radio ad would just say at the end, ``Paid for
by American Action for the Environment.'' Well, I think most
Americans would think that is a pretty good disclaimer under
the law today. You know who is running the ad. You know who
paid for it.
But the bill would require this, and it is going to take
about ten percent of my testimony to read the disclaimer on
this radio ad. It would have to say something like this, and no
editing really is allowed. The FEC Commissioners behind me
could affirm this because the group that I used to work at once
asked for an exemption from some of these disclaimers and they
said the FEC could not grant it due to the law.
It would say, ``Paid for by American Action for the
Environment, www.AmericanActionfortheEnvironment.org,'' or the
address or phone number, ``not authorized by any candidate or
candidate's committee, and I am John Smith''--I am not really
John Smith, obviously--``the Chief Executive Officer of
American Action for the Environment, and American Action for
the Environment approves this message. Major funders are Ronald
B. Coppersmith and Donald Wasserman Schultz.''
Now, that disclaimer took about 20 seconds to speak. How
are groups supposed to purchase a 30-second radio ad if you
have a 20-second disclaimer? And I have not even mentioned
groups with longer names, such as the American Academy of
Otolaryngology, Head and Neck Surgery. This is ridiculous to
have this kind of disclaimer on a radio ad.
Now, all this is totally unnecessary. Current law already
requires disclosure of all spending to the FEC for all
independent expenditures and electioneering communications and
all contributions over $200 a year to further such
communications. I have given examples of this disclosure in my
written statement.
Now, there is more in this bill that goes far beyond
disclosure and adds confusion to an election code and
regulations and that are already just too complicated. I tell
people election law makes the tax code look simple by
comparison. There is a new and, what I consider, indecipherable
definition of express advocacy and that really should be
deleted from the bill.
In conclusion, I want to emphasize that, this bill piles
new costs on nonprofits and other speakers, costs that are
certain to chill speech and appear intended to accomplish
indirectly through costly and arbitrary compliance provisions,
long disclaimers, what Congress may not do directly under the
First Amendment, and that is silence dissent and speech. Thank
you.
[The prepared statement of Mr. Keating included in the
record]
Chairman Schumer. Mr. Hasen. Professor Hasen, excuse me.
STATEMENT OF RICHARD L. HASEN, CHANCELLOR'S PROFESSOR OF LAW
AND POLITICAL SCIENCE, UNIVERSITY OF CALIFORNIA-IRVINE SCHOOL
OF LAW
Mr. Hasen. Chairman Schumer, Ranking Member Alexander, and
members of the Rules and Administration Committee, thank you
very much for the opportunity to be here today to testify about
the DISCLOSE Act.
I strongly support the measure as a way of closing
loopholes and requiring the disclosure of information which
will deter corruption, provide the public with relevant
information, and allow for the enforcement of other laws, such
as the bar on foreign money in U.S. elections.
The proposed legislation uses high-dollar thresholds and
enables contributors to tax-exempt organizations to shield
their identity when making non-election-related contributions.
These steps ensure that the First Amendment rights of free
speech and association are fully protected. I hope the Senate
returns to its prior bipartisan consensus in favor of full and
timely disclosure.
We have heard what Justice Kennedy thought the world after
Citizens United would look like, and unfortunately, that world
has not materialized. The main problem is that action has
shifted from PACs and 527 organizations, which have to disclose
all of their contributors, to new 501(c)(4) and other types of
501(c) organizations which require no public disclosure of
contributors. And under the FEC rules, most contributors who
are funding electioneering communications are not disclosed.
How serious of a problem is secret money? The Center for
Responsive Politics found that in 2010, the spending coming
from groups that did not disclose rose from one percent to 47
percent since the 2006 mid-term elections and that 501(c)
spending increased from zero percent of total spending by
outside groups to 42 percent in 2010.
Furthermore, with the rise of super PACs, contributors can
easily shield their identity from the public, hiding behind
innocuous names like Americans for a Strong America. The public
does not get the information on who is funding the ads when it
needs it the most, when it hears the ads.
Even worse, contributors can shield their identities by
contributing to a 501(c)(4), which in turn donates to a super
PAC, as recently happened when nearly half of FreedomWorks'
super PAC contributions came from its sister 501(c)(4).
Disclosing that FreedomWorks' contributions came from
FreedomWorks is not helpful to voters.
I now turn to the benefits of the bill. The first benefit
of all disclosure bills is that they can prevent corruption and
the appearance of corruption. While the first best solution
might be to return to the days before Citizens United and bar
corporate spending in elections, disclosure is an important,
though second-best, alternative to corporate spending limits to
ferret out corruption.
Second, disclosure laws provide valuable information to
voters. This was apparent to California voters recently when
they turned down a ballot proposition that would have
benefitted Pacific Gas and Electric. PG&E provided almost $46
million to the Yes on 16 Campaign, compared to very little
spending on the other side. Thanks to California's disclosure
laws requiring top contributors' names to be mentioned, PG&E's
name appeared on every Yes on 16 ad and the measure narrowly
went down to defeat. The DISCLOSUE ACT has a similar kind of
provision.
Third, the DISCLOSE Act would help enforce other campaign
finance laws. If you are worried about foreign money in
elections or conduit contributions, where one person gives
through another, the only way to find these out is through
adequate disclosure.
Finally, let me turn to the question of whether the
DISCLOSE Act would face First Amendment challenge. We have
heard that in Buckley v. Valeo and in Citizens United and in
other cases, the Supreme Court has repeatedly and nearly
unanimously upheld disclosure laws, going much further than
just the requirement of disclosure as to express advocacy. But
the Supreme Court has also stated that if a group can
demonstrate a history or a threat of harassment, it is entitled
to a constitutional exemption from those rules.
As to harassment, in a forthcoming article in the Journal
of Law and Politics of the University of Virginia, I closely
analyzed the claims of harassment that have been made in recent
court cases surrounding controversial ballot measures about gay
marriage and gay rights. Both of the district courts found that
harassment is not a serious problem, and if it is, there is the
entitlement to an exemption.
The DISCLOSE Act provisions are ingenious in allowing
contributors to nonprofits to keep information private when
their money is going to be used for non-election purposes. The
nonprofit can set up a separate account only for election
purposes. The DISCLOSE Act sensibly targets the activity,
contributing money to election-related ads, rather than the
type of organizational forum. If someone is contributing money
to run an election ad, that should be disclosed, regardless of
the name of the organization that is used.
Thank you again for the opportunity to speak and I welcome
your questions.
[The prepared statement of Mr. Hasen included in the
record]
Chairman Schumer. Thank you, and I thank all three
witnesses for their testimony.
My first question is to Mr. Keating. Mr. Keating, as you
know, the example Professor Hasen used, where somebody
contributes a great amount of money to a 501(c)(4), the
501(c)(4), a shell organization, gives it to the super PAC or
the 501(c)(3) and just discloses the name of that 501(c)(4),
your written testimony does not account for that loophole. Do
you not agree that there is no effective disclosure when a
501(c)(4) is given a large contribution and a certain
percentage--a large percentage of that money is used to put ads
on TV?
Mr. Keating. Well, I think there are already laws--a law
against contributing in the name of another. It is already in
the election laws----
Chairman Schumer. No, no, no. But what----
Mr. Keating. If----
Chairman Schumer. Mr. Keating, let me----
Mr. Keating. Yes.
Chairman Schumer. You have got to answer the specific
question. He said that FreedomWorks, just having FreedomWorks
be the listing is not adequate. It does not tell us anything.
You can have a false name in your example. Citizens Against
Pollution could be funded by people who want to remove
pollution controls. So just having any name on the ad does not
tell you anything. The name could be deliberately deceptive. Do
you disagree with that, that simple proposition that 99 percent
of all Americans would say, yes, sure, obviously.
Mr. Keating. So if a group like the Sierra Club runs an ad,
we need to know, are the donors to the Sierra Club--I mean,
that is the implied----
Chairman Schumer. No, but let us say the Sierra Club----
Mr. Keating [continuing]. Behind the question----
Chairman Schumer. Let us say the Sierra Club wants to take
out somebody who is a defender of--in a State where coal is
used and they set up an ad campaign saying, Citizens for Coal
Use, and then fund ads against that person, that candidate,
that incumbent, on an unrelated issue. Disclosure does no good.
In fact, it is deceptive. Yes, if they use the name the Sierra
Club, people know what the Sierra Club is. You are using an
obvious example. But they could set up a shell organization
with a totally opposite name, the Pollution Club.
Mr. Keating. And under the law today----
Chairman Schumer. All that would be disclosed, and you seem
to be defending it, is the name Pollution Club.
Mr. Keating. No, that is incorrect, Mr. Chairman.
Chairman Schumer. That is absolutely correct if they give
to a 501(c)(4).
Mr. Keating. No, you are incorrect about that. If it is an
independent expenditure, that group needs to report the donors
used for that independent expenditure. That would be listed in
the FEC filings. So we would know that the Sierra Club gave to
this front group that you are talking about here.
Mr. Wertheimer. If I could----
Chairman Schumer. Go ahead, Mr. Wertheimer.
Mr. Wertheimer [continuing]. Step in at this point, the
statute does require contributors to be disclosed. The
regulations issued by the FEC have gutted the disclosure
provision.
Chairman Schumer. Explain how.
Mr. Wertheimer. That is how--because they have limited the
disclosure to only individuals who give for the specific
purpose----
Chairman Schumer. Exactly.
Mr. Wertheimer [continuing]. Of running those ads, and no
one says they do. That is how we wound up with $135 million----
Chairman Schumer. Right.
Mr. Wertheimer [continuing]. In undisclosed contributions.
Chairman Schumer. Correct, and the effect, the practical
effect is we do not know where this 501(c)(4) money is coming
from, and we will never know. That is the bottom line, is that
not correct, Professor Hasen?
Mr. Hasen. Yes. I think that if you listen to Mr. Keating
very closely, he talked about disclosure of contributions
funding independent expenditures.
Chairman Schumer. Right.
Mr. Hasen. What is happening, technically speaking, is that
these groups are running electioneering communications, which
as Mr. Wertheimer explained, contributions to fund
electioneering communications are not adequately disclosed
thanks both to FEC regulations as well as a deadlock on the FEC
as to how the rules should be----
Chairman Schumer. So my example is correct.
Mr. Hasen. I believe so, yes.
Chairman Schumer. Thank you. Okay. My time is running out,
and we will try to have a second round, but I want to try to
stick to the five minutes.
So my second question just goes to Mr. Wertheimer. Senator
Alexander and others have suggested removing contribution
limits for candidates and parties--that was a key part of
McCain-Feingold--would be a solution. Can you just give us a
brief sketch of what would happen in the political landscape if
we did that? I take it, Senator Alexander, your proposal would
be that then everything would be disclosed. If someone wanted
to give to a 501(c)(4) or an independent expenditure, there
would be disclosure of that if we lifted all limits, is that--
--
Senator Alexander. I am assuming, Senator Schumer, that if
the limits were lifted, that people would give to campaigns and
the campaigns and candidates would disclose. There would be no
reason to give to a political----
Chairman Schumer. Except----
Senator Alexander [continuing]. Super PAC or operation.
Chairman Schumer. Unless you did not want to disclose.
Senator Alexander. Well----
Chairman Schumer. Okay. But anyway, why does Mr. Wertheimer
not just give us a little example of why--a little sketch of
what might happen, in his opinion.
Mr. Wertheimer. Well, I think, in my view, that would take
us back to a system of legalized bribery that we used to have
years ago, and let me give a few comments from people other
than me about this.
The Supreme Court in Buckley v. Valeo said contributions
were necessary to deal with the reality or appearance of
corruption inherent in a system permitting unlimited financial
contributions. An inherently corrupt system is what the Supreme
Court called a system of unlimited contributions.
Former Republican Senate Whip Alan Simpson said about the
unlimited soft money system, the system of unlimited
contributions to national parties, quote, ``prostitutes ideas
and ideals, demeans democracy, and debases debates. Who, after
all, can seriously contend that a $100,000 donation does not
alter the way one thinks about, and quite possibly votes on, an
issue?''
Former Republican Senator Warren Rudman said about the
unlimited soft money system, ``I know firsthand and from
working with colleagues just how beholden elected officials and
their parties can become to those who contribute to their
campaigns and to their parties' coffers. Individuals on both
sides of the table recognize that larger donations effectively
purchase greater benefits for donors.'' Unlimited contributions
to the parties, quote, ``affect what gets done and how it gets
done. They affect outcomes, as well.''
And one last quote from a former colleague, a late former
colleague of the Senate, Senator Russell Long, the Chairman of
the Finance Committee, who well knew his way around campaign
money. He once said, ``The distinction between a large campaign
contribution and a bribe is almost a hairline's difference.''
So my view is, we go back to a system of buying results in
Congress, direct purchases, if we go back to a system of
unlimited contributions.
Chairman Schumer. But certainly in--and I am not going to
ask you to respond to this because my time is up--what Senator
Alexander, my good friend, who I have tremendous respect and
affection for--and that is God's honest truth - is suggesting
we would go back to the old system. Basically, he is saying,
let us go back to the system with no limits which was in
existence 30 years ago, right?
Mr. Wertheimer. It was in existence when we got Watergate.
Chairman Schumer. Before 1974, right. Okay.
Senator Alexander.
Senator Alexander. Thank you, Senator Schumer. Thanks for
asking Mr. Wertheimer that question. I was going to ask him
that if you did not.
Of course, Senator McCarthy in testimony before this
committee said the following. ``Watergate was cited as an
example of corruption of the system, although there was nothing
in Watergate that would have been prevented or made illegal by
the 1975 Act,'' which was the Act identifying limits on
contributions.
I would like to come back to limits on contributions just a
minute with Mr. Keating. Let me ask you, do you think if the
DISCLOSE Act as it is written passed, there would be less
spending by the groups affected on elections?
Mr. Keating. It is hard to say, Senator. There is no way of
knowing in advance. I think there probably would be less
spending. There certainly would be massive disruption in the
way many of these organizations need to handle their
fundraising efforts.
And I did want to mention something, which is what one of
the other witnesses identified as a problem in the regulations
or the law. If there is a problem with that, why would you not
just take a surgical knife and just fix that one small problem?
I can tell you, I recently worked at the Club for Growth,
and that group was a qualified nonprofit corporation. Before
Citizens United, that group, as well as the League of
Conservation Voters, Planned Parenthood, and some other groups,
were allowed to do independent expenditures from their general
funds. We did not raise money for independent expenditures from
people. We ran independent expenditures out of our general
budget. Now, that is something that I think most people--most
Americans would agree that groups like--whether it is the
Sierra Club or something else--should be able to fund these ads
out of their own budget.
If there is consensus that the problem with disclosure is
created by a vague law or the regulations being vague about
raising money for independent expenditures or electioneering
communications, then why not just fix that one thing? This bill
goes way beyond that, way beyond that, to cover anything that
is run during an entire election year.
Senator Alexander. Mr. Keating----
Mr. Keating. I think that goes too far.
Now, as far as----
Senator Alexander. Mr. Keating, you are using up all my
time.
Mr. Keating. Oh, I am sorry.
Senator Alexander. Let me ask you this question. Do you
think if we took all the limits off contributions to campaigns,
do you think that would tend to dry up super PACs?
Mr. Keating. I think a lot of this money going to super
PACs would go directly to the candidate. I do not have any
doubt in my mind, because----
Senator Alexander. And if it went to the candidate, it
would be fully disclosed, is that right?
Mr. Keating. Absolutely.
Senator Alexander. Under current rules. On limits, I have a
little different view than Mr. Wertheimer and I have a little
different experience than he does. I have actually run in a
Presidential campaign with limits and in other campaigns, and
here is the way it works. Because of the limits in 1995, when I
was a candidate, I went to 250 fundraisers to try to get money
from people who could not give more than $1,000. So I spent a
lot of time with people who could afford to give $1,000, 70
percent of my time, probably, over a year. That is 250 events.
That raised $10 or $11 million.
At the same time, Steve Forbes was able to spend $43
million of his own money. That is what he did in 1996, and in
2000, he spent $38 million of his own money.
I told that to Senator Kerry when I was on the Harvard
faculty in the early 2000s and I said, you know, there has
never been a credible candidate for President who spent his own
money, and if you are ever in that position and you did it, it
would probably help you. He was in that position in 2003.
Howard Dean was beating him pretty badly in terms of the amount
of money raised. Dean had raised $14 million, Kerry $4 million,
and the media was saying, Kerry cannot raise money. Therefore,
he will not make a good President. Kerry put $6 or $7 million
of his own money in and won the Iowa caucus and became the
nominee.
I watch FOX and MSNBC sometimes when I am down in the gym
with Senator Schumer watching television and they run ads
regularly, just the way that--I mean, their broadcasts are ads,
in many cases, for a political point of view. That is their
right to do. In countries where we do not have a democracy, the
first thing the leaders do is to take over the television
stations and keep everybody else from having enough money or
resources to advertise their views.
So it seems to me that as long as we have a First
Amendment, as long as we have a First Amendment that permits
Steve Forbes, a fine American, John Kerry, a fine American, and
others to spend their own money, that all we are doing with
limits is turning Washington into a city of panderers for
$1,000 and $2,000 contributions. Before 1975, we did not spend
all our time at fundraisers. After 1975, Congressmen did, and
the only reason you do is because you cannot raise money in
sufficient amounts to run a campaign that buys enough
television time to compete with the ads the TV stations are
already running or the ads that rich Americans might buy
because they have the money themselves.
So taking the limits off would solve almost all of the
disclosure problem because the money would then be given to
candidates and campaigns and more people would participate,
campaigns would run longer, as they have this year in the
Republican primary, more voters would have a chance to vote,
and elected officials would spend a lot less time with people
who are trying to give them money.
Chairman Schumer. Thank you, Senator Alexander, but just
one point I would make. If you do not--still, if you do not
require disclosure of the super PACs, there will be people who
will want to give undisclosed, so you will still have that
ability to do it. But if you want to give a million dollars to
the candidate, you will have to disclose it.
Senator Alexander. Yes. If you give to the President's
super PAC, you have to disclose that.
Chairman Schumer. So my only question, just for
clarification, because he has put out an alternative, is are
you recommending that there be some kind of disclosure in the
501(c)(4)s, (c)(6)s, (c)(3)s, in addition to removing the
limits?
Senator Alexander. If you are willing to remove the limits,
I am willing to discuss with you what the disclosure definition
ought to be.
Chairman Schumer. Thanks. Okay. I appreciate that.
Senator Feinstein.
Senator Feinstein. I have been sitting here reflecting on
the change in times. Mr. Keating mentioned that disclosure,
sunlight, knowledge, was a radical idea, and I was really taken
aback by that because I do not see how it possibly can be. This
bill is modest. You can give under $10,000 without disclosure
to a super PAC. It is over $10,000. Now, someone that
contributes over $10,000 generally has some kind of motivation
to contribute. The disclosure simply allows individuals to look
at this and see who is supporting a candidate or a cause. What
about this is such a radical idea, Mr. Keating?
Mr. Keating. Well, Senator, it sounds like I may have been
misinterpreted or I misspoke, but I was talking about the bill
itself, not the concept of disclosure being a radical concept.
There are provisions in this bill that I consider radical
and I think perhaps the most radical is the government-mandated
disclaimer that goes on for 20 seconds or more, in many cases,
on a radio ad. Now, this would cover all radio ads that mention
the name of a Congressman, something as simple and innocuous as
a bill being before Congress and it says, ``Call Congressman
Smith and urge him to vote for the bill.'' You would have to
run an ad at least a minute long to even hope of getting your
message across.
So you are going to drive up the costs of these ads, and I
do not understand why we need a disclaimer that goes on for 20
seconds when something as simple as ``Paid for by Americans for
Action for the Environment'' does the trick. To me, that is a
radical approach, requiring groups to state a bunch of
bureaucratic nonsense in a disclaimer that drives up the cost
of advertising by a tremendous amount.
Senator Feinstein. Well, I am running for reelection, in a
big State, very expensive for television, and yet I should be
responsible for the ads I put up on television. Therefore, the
disclaimer is important because it says to people that the ad
is speaking for me and I take responsibility for it. What is
radical about that?
Mr. Keating. Well, I think what is radical about it is the
bill specifies a disclaimer that goes on seemingly forever when
it could be said in far fewer words.
Senator Feinstein. Mr. Wertheimer.
Mr. Wertheimer. Mr. Keating has focused on the radio ads.
Let us move to the TV ads for a minute. The TV ads require the
head of an organization to take responsibility for the ad in
the same way that you have to take responsibility for your ad,
so that there is accountability and responsibility for campaign
ads. The TV ads also require the ad to list the top five
donors, but that can be done in a crawl and would take up no
time from the content of the ads.
With respect to the radio ads, there were provisions added
last time that are still in this bill that give the FEC the
power through regulation to exempt the kinds of ads that Mr.
Keating----
Mr. Keating. That is incorrect.
Mr. Wertheimer. It is correct. It is in the bill.
Mr. Keating. No, it is not. For radio? It is not correct.
It only exempts the major donor listing, not the rest of the
disclosure.
Mr. Wertheimer. Well----
Senator Feinstein. My time----
Chairman Schumer. Let me just--there is a hardship
exception which the FEC can use for just what you are talking
about. You are correct, Mr. Wertheimer.
Senator Feinstein. If the disclosure is too long or
burdensome----
Chairman Schumer. Now, it takes eight seconds. Of course,
if you say it very slowly, you could stretch it out to 20
seconds if you should want to. It takes eight. There is a
hardship exception.
Senator Feinstein. Yes, please.
Mr. Hasen. I would just add that as a fellow Californian, I
can tell you that we have rules very much like this. We hear
political ads on the radio all the time. They mention the top
two funders. It is really not a burden. You can get your
message out, and everyone does.
Senator Feinstein. Yes. I was--well, my time is up, but I
was just reading----
Chairman Schumer. You have an extra couple of minutes
because----
Senator Feinstein. I was just reading about the PG&E case,
where--oh, I wish I had it in front of me. I put it down
somewhere. Oh, here it is. That the PAC raised approximately
$46.2 million, all of which was donated by PG&E. Now, PG&E is a
good company. It has fallen on very hard times for certain
things. I do not want to get into that. But at one point, it
donated $9 million in one day. There is a consumer group called
TURN, The Utility Reform Network. They were the main opponents
and they were able to raise $33,000. The PAC outspent 500-to-
one, which amounts to approximately $25 per vote, and they
lost. And I think the reason they lost--this is my opinion--is
because of the disclaimer, and then everybody was able to come
to the conclusion, this is not fair. This is the company about
which this initiative is and it is not fair.
Now, the company is not necessarily an individual speaking.
It is a group. It is a kind of oligarchy, if you will. It is a
board of directors, I would assume, who makes that decision.
But it seems to me that this is a very good example of
disclosure. In other words, the entity that does the super PAC
without disclosure has a very unfair position on the ballot.
You would disagree with that, Mr. Keating, would you?
Mr. Keating. Well, I am not familiar with the details of
California law, but if it worked there, then great. I have no
problem with that.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Schumer. Just two points. I believe our law is
quite the same as California. And second, the hardship
exemption I mentioned, if for some reason the man's name is
Richard Q. Quiddlehopper the Fourteenth and it takes 20 seconds
to say their name, the hardship exception is on page 21, lines
five through 14. It is in the bill.
With that----
Senator Blunt. And, Mr. Chairman, is the hardship exemption
you are talking about eight seconds? If it takes more than
eight seconds?
Chairman Schumer. They say if it takes----
Senator Feinstein. Read the language.
Chairman Schumer. I will read it. If the communication is
transmitted through radio and is paid for in whole or in part
with a payment which is treated as a campaign-related
disbursement under 324, the top two funders list, if
applicable, unless, on the basis of criteria established in
regulations by the Commission, the communication is of such
short duration--perhaps a 30-second ad--that including the top
two funders list in the communication would constitute a
hardship to the person paying for the communication by
requiring a disproportionate amount of content of the
communication to consist of the top two funders--I imagine if
you had a 30-second ad with 20 seconds, the disclosure would
take 20 seconds, that would clearly be a hardship. I would be
happy to say on the floor that that is the legislative intent.
Senator Blunt. And I guess the FEC would maybe decide that.
Mr. Wertheimer, I do not want to take a lot of time on
this, but let me be sure I understand. You said earlier on
disclosure, the statute currently required disclosure--that the
FEC, I think, has gutted the disclosure.
Mr. Wertheimer. The contribution disclosure.
Senator Blunt. And how has the FEC gutted the contribution
disclosure?
Mr. Wertheimer. By defining the only contributions required
to be disclosed as the contributions that were given for the
specific purpose of making campaign-related expenditures.
Senator Blunt. And these would be contributions to these
various groups----
Mr. Wertheimer. Organizations, yes.
Senator Blunt [continuing]. Like the Sierra Club or
Democracy 21 or whatever other group might spend money for that
purpose.
Mr. Wertheimer. Yes.
Senator Blunt. Okay. Do you think we should be having a
hearing on enforcing the statute?
Mr. Wertheimer. I think you ought to have a separate
hearing on fundamentally reforming the Federal Election
Commission, but I do not think a hearing on enforcing the
statute on this regulation is going to get us to solve the
problem of disclosure.
Senator Blunt. But the statute, you said, required
disclosure.
Mr. Wertheimer. Under the current rules of the statute,
there is a contribution disclosure provision which has
resulted, as I said, in more than $130 million not being
disclosed.
Senator Blunt. All right. Let me be sure I understand. Mr.
Keating made a statement that groups like the Sierra Club or
Club for Growth should be able to run ads out of their own
budget, is that a fair----
Mr. Keating. Yes.
Senator Blunt. And do you all agree with that, that groups
like the Sierra Club or Club for Growth should be able to run
ads out of their own budget, just a yes or no.
Mr. Wertheimer. Yes, and the statute accounts for that.
Senator Blunt. And Mr. Hasen?
Mr. Hasen. Yes. I think so long as they apply with the
applicable disclosure rules, sure.
Senator Blunt. And what would those be, Mr. Keating, the
applicable disclosure rules for running ads out of your own
budget?
Mr. Keating. Well, you have to--if it is an independent
expenditure, you must list the independent expenditure to the
FEC within 48 hours, or 24 hours, depending on when it was run,
and if it is an electioneering communication, you need to
disclose the expenditure.
If money was given for the independent expenditure, and
this is where I alluded to the confusion both from the statute
and the regulations, different people take different
interpretations of what that means. I can tell you that when I
worked at Club for Growth, we interpreted that to mean that if
you raised money just generally for an independent expenditure,
the donor would have to be disclosed. Now, other people may
take a different view of that. So that is how our group took
the view.
So when we ran independent expenditures, we only did it
from our general funds. We never asked anyone for money for
independent expenditures----
Senator Blunt. And from your general funds, you did not
disclose all the donors to Club for Growth on any report
anywhere?
Mr. Keating. That is correct, because no money was given
for independent expenditures. Now, Club for Growth today has a
super PAC, Club for Growth Action, and it uses that entity to
raise money for independent expenditures, and all the donors to
that organization are disclosed.
Senator Blunt. So the super PAC donors for Club for Growth
are disclosed, but the regular donors for Club for Growth or
the Sierra Club, the two examples we have used here, are not
disclosed.
Mr. Keating. Correct. Now, if a group did raise money for
independent expenditures, you know, it is my view that this
would have to be disclosed under the current law.
Senator Blunt. And other----
Mr. Keating. Other people may interpret the requirements of
the law and regulations differently and may not disclose.
Senator Blunt. And under the law we are talking about
today, is it accurate that a member of the House or Senate,
that some groups, outside groups--which groups cannot mention
their name for the entire year of the election?
Mr. Keating. Well, any group, unless it would want to--if
we are talking about this bill becoming law----
Senator Blunt. Right.
Mr. Keating [continuing]. Any group that wanted to run an
ad during an entire election year, if they spend more than
$10,000, would have to meet the requirements of this Act.
Senator Blunt. And how would you mention the name of a
House member or Senator?
Mr. Keating. Well, you could not unless you complied with
all the provisions in this bill.
Senator Blunt. Mr. Wertheimer, do you want to say something
about that?
Mr. Wertheimer. Well, there are no restrictions in this
bill. There are disclosure requirements.
Senator Blunt. Well, there are restrictions that say you
cannot mention somebody's name from January 1 until the
election. That seems like a pretty big restriction to me.
Mr. Wertheimer. That is not a restriction in the bill.
Senator Blunt. It is not in the bill?
Mr. Wertheimer. The bill does not have restrictions. The
bill has disclosure requirements if you run ads.
Mr. Hasen. The bill provides a definition of an
electioneering communication, which already exists in the law,
and extends it. But if something is triggered as an
electioneering communication, all that this does is provide for
disclosure of information. It does not prevent anyone. There
were limits before in the McCain-Feingold law. Those were
struck down----
Senator Blunt. So we take the 60 or 90 days that were--30
or 60 days in the law now and we take that same principle and
expand it for an entire year?
Mr. Hasen. As to disclosure to the election year, that is
right.
Senator Blunt. So I would think that members of the House
and Senate would like that, that they could not have their name
mentioned without these restrictions for the entire election
year. That is half a House term and one-sixth of a Senate term,
and the one-sixth of the Senate term you are running for
election.
Mr. Keating. There is----
Senator Blunt. All right. I think I am out of time, Mr.
Chairman.
Chairman Schumer. Thank you, Senator----
Mr. Keating. Senator, if I might add one other observation,
there is no limiting principle to this. I mean, why could it
not be both years? Why could it not be at all times? I do not
see any limiting principle here.
Chairman Schumer. Senator Udall.
Senator Udall. Mr. Wertheimer, under existing law, have
primaries been held where super PACs ran ads and their donors
were not disclosed until after the primary? And if that is so,
is this not a problem and how does the bill deal with it?
Mr. Wertheimer. Well, I think it was a big problem in this
election. The Iowa caucuses and the New Hampshire, South
Carolina, and Florida primaries were all run and over with
before we had the first disclosures of the super PACs of who
their funders were, and that was because the way the law
currently functions, in an off-election year, a PAC only
discloses semi-annually and at the end of the year. So all of
the money raised in the six months--the last six months of
2011, there was no disclosure of the donors until January 31.
The bill fixes that by basically requiring disclosure to be
made when the expenditures are made. Then you have to disclose
the contributors, as well. So it does solve the problem of that
serious disclosure problem for super PACs that existed in this
election.
Senator Udall. Now, the 2010 elections, and I did not look
at all of these, but I notice, and I think Senator Schumer,
Chairman Schumer will remember this, I believe Senator Bennet,
our friend out in Colorado, told us that the combined
expenditures, total independent expenditures, far overwhelmed
both--the totals for both candidates, both Democrat and
Republican.
Do you see, when we are moving down the road, as we get
into 2012 and 2014, where we have elections where the combined
spending of super PACs and independent expenditures are well
beyond what the candidates are spending? Is this a good trend?
Is this something that better informs the voters about what the
candidates' positions are? Do you think this is good for
democracy? Mr. Wertheimer.
Mr. Wertheimer. No, nor do I think the solution to it, as I
said before, is to remove the contribution limits. You know,
the studies have shown that almost all of the super PAC ads are
negative ads, negative attack ads, and that leads me to believe
that even if you did remove the contribution limits, you would
still have super PACs raising large amounts of money and
running negative ads and also potentially (c)(4) organizations.
But we believe that one of the steps that should be taken
and can be taken is to end the candidate-specific super PACs of
the type we have seen in the Presidential election. Those super
PACs can be eliminated. When the Supreme Court ruled in
Citizens United that corporate independent expenditures took
place, they also said that they had to be independent of the
candidate and they left to Congress to define what is
independent, what is coordination. Once again, we have very
weak and problematic coordination rules. Even under those
rules, we believe a number of the candidate-specific super PACs
are operating illegally.
But we clearly feel that you could define super PACs in a
way that they are not going to be run by close associates of
the candidate and they are not going to be having their money
raised by the candidate's campaign. These super PACs are not
independent PACs. They are arms of the campaign and I think
most people recognize that. And they are hiding behind their
own views of what constitutes coordination under the law and
also under a realization that the law is not going to be
enforced against them by the FEC.
The Supreme Court, when it talked about independent
expenditures in the past, was very clear. It had to be wholly
independent, fully independent, truly independent. These super
PACs are anything but those concepts.
Senator Udall. And I know I only have a couple of seconds
here, but it seems to me that in reading about the super PACs
in the Presidential campaign, these are individuals who worked
very closely with the candidate in many cases. They may have
left the campaign recently, or left official officer recently,
or were the chief of staff within the last year. These are the
kind of people that are running the super PACs and amassing the
money and putting them together, are they not?
Mr. Wertheimer. That is correct.
Senator Udall. Most of the cases----
Chairman Schumer. If my colleague would yield----
Senator Udall [continuing]. Most of the cases--yes,
please----
Chairman Schumer [continuing]. In one case, it was the
candidate's father who ran the super PAC, as I understand it,
is that correct?
Mr. Wertheimer. Well, he was the major--overwhelmingly
major funder of it.
Chairman Schumer. Yes. Sorry. Go ahead.
Mr. Keating. Well, I think this is a strange concept, that
somehow a father can corrupt the son through a donation. There
is another provision we have in the law that a husband can run
but could not take a contribution from his wife because,
presumably, his wife might corrupt him by giving him a
contribution that is too large.
As I said earlier, the election law has some very strange
provisions in it. There are things that are incredibly vague. I
think we have heard the call for tax code simplification. One
of the things we need to have is election law simplification.
Even though Fred Wertheimer is a student of this area for many
years, he is saying some things that are, I think, misleading.
For example, the idea that a campaign manager can go to a
super PAC--there is a restriction in the regulations on the
definition of an independent expenditure. In that regulation it
says you cannot have someone who is going from a campaign to a
PAC and then working on that independent expenditure for a
period of days, I forget the number, I think 90 or 120. So
there are restrictions. There is no evidence that these super
PACs are illegally coordinating.
Of course, people who know, understand or maybe support
strongly these candidates may feel strongly about starting up
such a group, so that is not a surprise.
The final thing that I would like to observe is money is
not everything. You look at the Republican primary for
President this time and you look at candidates who soared
during this primary, and it was often on the strength of their
performance in the debates, and a lot of people were watching
these debates. So there are other ways to get information out
other than just money, but money is very important. It is part
of speech, and I think the increased money that we have in this
primary that we are seeing going on today has been a good
thing. Turnout is up. There is more information for voters.
There have been more front runners. It has been a very
competitive race.
Senator Udall. Mr. Wertheimer, would you like to respond to
that, just briefly?
Mr. Wertheimer. Well, I think there is one example where a
major fundraiser for the Romney campaign left the campaign and
a few days later went to work for the Romney super PAC. Now, if
you think that is illegal, I would be interested, and maybe you
would do something about it.
But the way this has worked is that former close political
associates of the candidates, whether it is Mitt Romney or
President Obama, have left or have set up these super PACs. In
the case of President Obama, two former White House staff
people left the White House and a few months later set up
Priorities USA Action. And this has happened over and over
again, where the people who are running them are closely tied
to the candidates.
You also have--I mean, in the case of President Obama and
Mitt Romney, they are sending their top aides to these
fundraising events. Now, they are claiming that, well, we are
not there to solicit unlimited money for the super PACs. We are
only here to ask for $5,000. But the reality of what is going
on here is that they are coordinating with the expenditures of
those fundraising events. I mean, I think that happens to be
blatant.
So this is happening all over the place. Everyone is doing
it. That is not good. That does not make it right. And in the
end, I think the highest priority here is to protect the
interests of the American people, not the Democratic party or
Democratic candidates or the Republican party or Republican
candidates. The American people have the bottom-line stake here
and they have a right to know who is putting up the money and
who is spending it to influence their votes.
Chairman Schumer. Well, I had hoped we could have a second
round here of questions, but they moved up the vote. It started
at 11:15, so we are going to have to vote. So I hope people
will submit questions in writing. There are a lot more
questions that I had.
I also hope we can move this bill to the floor in a
relatively short period of time. I think it is a really
important issue. My worry--this is me speaking--I think that
what has happened after Citizens United is corroding the very
essence of our democracy. And when a handful of people--free
speech is not an absolute. You cannot scream ``Fire!'' in a
crowded theater falsely. We have libel laws. We have anti-
pornography laws. And when in the name of free speech a handful
of individuals can have such a hugely disproportionate effect
on the election, undisclosed, I think that corrodes the very
roots of our democracy. I worry about the future of this
country in terms of accountability. So in at least my view, and
I take the liberty as Chairman of making a closing statement,
is that we have to move forward.
With that, without objection, the hearing record will
remain open for ten business days for additional statements and
documents submitted for the record. We also request that our
witnesses respond in writing to additional written questions
from committee members.
I want to thank my colleagues for participating, Senator
Alexander, Senator Udall. And I want to thank our witnesses for
a very illuminating discussion.
And with that, the committee is adjourned.
[Whereupon, at 11:33 a.m., the committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
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APPENDIX MATERIAL SUBMITTED
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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
THE ``SENATE CAMPAIGN DISCLOSURE PARITY ACT''
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WEDNESDAY, APRIL 25, 2012
United States Senate,
Committee on Rules and Administration,
Washington, DC.
The Committee met, pursuant to notice, at 9:39 a.m., in
Room 301, Russell Senate Office Building, Hon. Charles E.
Schumer, chairman of the Committee, presiding.
Present: Senators Schumer, Udall, and Alexander.
Also Present: Senator Tester.
Staff Present: Jean Bordewich, Staff Director; Josh
Brekenfeld, Deputy Staff Director; Adam Ambrogi, Chief Counsel;
Veronica Gillespie, Elections Counsel; Kelly Fado, Operations
Oversight; Julia Richardson, Counsel; Nicole Tatz, Professional
Staff; Lynden Armstrong, Chief Clerk; Matthew McGowan,
Professional Staff; Jeff Johnson, Staff Assistant; Mary Suit
Jones, Republican Staff Director; Shaun Parkin, Republican
Deputy Staff Director; Paul Vinovich, Republican Chief Counsel;
Michael Merrell, Republican Elections Counsel; Lindsey Ward,
Republican Professional Staff; Trish Kent Republican
Professional Staff; and Rachel Creviston, Republican
Professional Staff.
OPENING STATEMENT OF CHAIRMAN SCHUMER
Chairman Schumer. The Rules Committee shall come to order,
and good morning, everybody. I would like to thank my friend,
Ranking Member Alexander, for joining me at this hearing to
discuss the Senate Campaign Disclosure Parity Act, S. 219,
introduced by Senator Tester last year.
The legislation we are going to discuss today is, in my
opinion, a no brainer. It is non-controversial, will save
taxpayers about half a million dollars a year, and has wide
bipartisan support. It has 24 co-sponsors from both parties,
including our Committee colleague, Senator Cochran, and six
other Republicans.
Senator Tester is here today, and without objection, I
would like to welcome him on the dais for the hearing. I
strongly applaud my colleague from Montana for pushing this
bill because it will cut government spending, strengthen
campaign disclosure and make senators comply with the same
filing requirements as every other federal candidate.
The current paper-based filing procedure for Senate
candidates is a relic from an earlier time. Senate candidates
are required to submit their campaign reports on paper to the
Secretary of the Senate, who then has to scan that information
and e-mail it to the Federal Election Commission, which prints
it out and mails it to a private contractor. Finally, on
receiving thousands of pages in the mail, a private contractor
manually types the information into a searchable format and e-
mails it back to the FEC, which posts it on their online
database.
Needless to say, the process is cumbersome, wasteful and
time consuming. I strongly believe that timely disclosure of
campaign finance reports is crucial to safeguard the integrity
of our elections. This bill helps do that. When the legislation
passes, Senate candidates will finally join candidates from the
House and for the president, being required to file their
campaign reports electronically and directly with the FEC
rather than indirectly and on paper with the Secretary of the
Senate.
Not only is e-filing more reliable and makes campaign data
available sooner, it also creates significant savings at a time
when both parties are searching for ways to reduce our national
debt. We will save about $100,000 a year, and probably even
greater savings, although not in the CBO way. We will free up
staffers to perform other functions.
The FEC estimates it would save them approximately $430,000
a year from eliminating the need for outside contractors who
convert the scanned files into the FEC's electronic database.
It would free up two full-time agency positions and would help
them with their supply situation.
The FEC has included this policy change in its legislative
recommendations for Congress for years. Now currently a handful
of senators from both parties already voluntarily e-file their
campaign reports with the FEC, so we know it works. And as a
sign of my own commitment to this legislation, I have recently
begun e-filing my reports. Is there any good reason to oppose
the legislation? I cannot think of one. But in the past when
the bill was brought up, it was sunk by controversial,
completely unrelated amendments, or simply blocked. Senator
Alexander and I have worked to try and avoid that on bills like
this, and by fortunate coincidence, we are the two ranking
members of the Rules Committee, so I hope we can get this bill
done quickly.
Senator Tester's legislation is common sense, bipartisan,
and I hope we can all agree on it and do it. Before we turn to
Senator Tester to make a statement and the panel of experts, I
would like to call on my friend and colleague Senator
Alexander. We are so close. This is the third time we are
meeting this morning already.
Senator Alexander. And I am sure not the last.
Chairman Schumer. And not the last.
OPENING STATEMENT OF SENATOR ALEXANDER
Senator Alexander. Thanks, Mr. Chairman. Thank you for
having the hearing. Senator Tester, welcome, and welcome to the
witnesses. I will ask consent that my entire statement be put
in the record----
Chairman Schumer. Without objection.
Senator Alexander [continuing]. And make just these
comments. I support this legislation. I hope we can bring it
out, report it quickly, bring it to the floor. I have
previously co-sponsored legislation like this. This bill is
better. It has less extraneous matter on it, and I think
therefore, it will be better received by the Senate.
It is possible that as it makes its way through the Senate,
there will be other common sense bipartisan suggestions for how
to improve our electoral process, and at that point I hope we
can consider those. But I compliment the chairman, Senator
Tester, for their work on this. I look forward to joining them
and trying to turn it into a law.
Senator Schumer. Senator Tester, we welcome you to the
Committee, and thank you for your leadership here. Your entire
statement will be read in the record, but feel free to proceed
as you wish.
OPENING STATEMENT OF SENATOR TESTER
Senator Tester. Thank you, Chairman Schumer, and Ranking
Member Alexander. It is a pleasure to be here today with two of
my favorite senators. Thank you very much for holding this
hearing I think on an important issue.
I will apologize first. I have a very important Veterans
hearing that I have to go to, so when I get done with my
statement, I am going to have to scoot. But as far as S. 219
goes, I think Congress has an obligation to be as transparent
and as open as possible. And at a time when we are looking to
save some money, we all share the responsibility for
identifying places to save taxpayer dollars.
This is a rare opportunity that we have in both cutting
spending and improving transparency here in Washington, and
that's exactly what S. 219, the Senate Campaign Disclosure
Parity Act, will do. My bill requires Senate campaign
committees to file their campaign finance reports directly and
electronically with the Federal Elections Commission, rather
than first filing on paper with the Secretary of the Senate.
This bill would bring Senate campaign reporting and
transparency into the 21st Century by requiring Senate
candidates to do what presidential and House candidates have
been doing since 2001. In the Senate, we have long exempted
ourselves from mandatory electronic filing of campaign reports,
holding fast to an outdated system of filing our reports with
the Secretary of the Senate.
The Secretary of the Senate then prints out reports and
delivers reports to the FEC. The FEC then reenters the reports
into their computer databases. The system is redundant and it
is wasteful. The FEC estimates it would save over $430,000 a
year if they received the reports directly in electronic form
from the candidates.
I also have serious concerns about the time delays that are
a direct result of the current system of disclosure. Citizens
are unable to view Senate candidate campaign finance
information until weeks or even months after the data is
initially filed. For example, campaign finance data filed in
the fourth quarter prior to a general election is typically not
accessible to the public until the following February, long
after the election has taken place.
In Montana, accountability and transparency are expected
from our elected officials and candidates for public office. We
expect to know what our elected officials are up to and who
they are raising money from. That is why I have led the charge
here to bring more sunlight to Senate campaigns, because I feel
so strongly about adding more accountability to Senate
campaigns. I already filed my campaign finance disclosure
electronically with the FEC, and as the chairman pointed out,
so do many other--so do many of the co-sponsors of this bill.
If I am going to put this in one sentence, I would say
this. We look for common sense measures in the Senate to be
done. I think the public expects us to do things that make
sense. This makes sense. Thank you for allowing me to be a part
of your Committee Chairman Schumer. Thank you for your
leadership, Senator Tester. Would you like to make a brief
statement, Senator Udall?
Senator Udall. No, but I was fortunate to be here and to
hear Senator Tester's statement, and he has moved me, and I am
going to join as a co-sponsor on his legislation because of his
excellent statement here, even before hearing these
distinguished witnesses.
So Senator Tester, you have one more. I believe you have
24. I guess I am number 25 here, to try to move it along.
Chairman Schumer. But a very important 25. I think this
seals the deal. Thank you. And we know you have to leave,
Senator Tester, but thank you for being here.
Senator Tester. Thank you.
Chairman Schumer. Okay, let me introduce our two witnesses.
Ms. Nancy Erickson, who we all know, and I think I can speak
for all of us, know and love, has served as Secretary of the
Senate since 2007. She is only the sixth woman to hold the
position. She worked for 16 years in the office of former
Senator Tom Daschle in various legislative scheduling
constituent outreach services. As Secretary of the Senate, she
oversees the filing of Senate candidates' campaign finance
reports.
Paul Ryan is the senior counsel at the Campaign Legal
Center, where he has worked since 2004. He is the former
political reform director at the Center for Government Studies
and an expert on campaign finance and election law, and he has
litigated many key cases, published numerous articles, and
testified before Congress on these issues.
Both witnesses' statements will be read into the record in
their entirety, and Ms. Erickson, you may proceed.
STATEMENT OF THE HONORABLE NANCY ERICKSON, SECRETARY OF THE
SENATE
Ms. Erickson. Good morning. I appreciate this invitation to
discuss the impact that the implementation of S. 219, the
Senate Campaign Disclosure Parity Act, would have on the Office
of Public Records, one of 26 departments under the Office of
the Secretary.
Current law requires the secretary to receive Senate
campaign reports as a custodian for the Federal Election
Commission (FEC). The Secretary is required to forward Senate
campaign reports to the FEC within two working days upon
receipt.
Since the enactment of the Federal Election Campaign Act of
1972 FECA, the Secretary's Office of Public Records has been a
filing location for Senate FECA documents which have been
submitted by Senate candidates in paper form. In response to
the Committee's inquiry, I can confirm for you that House
candidates file their reports directly with the FEC.
From our observations, many Senate campaign filers already
use the FEC's electronic system to prepare their reports, only
to then print the pages for delivery to the Office of Public
Records. In addition to filing with the Office of Public
Records, Senate candidates also have the option of voluntarily
filing electronically with the FEC, which makes those
electronic reports available as unofficial Senate electronic
filings.
A few filers take this additional step of voluntarily
submitting their campaign reports electronically.
My office takes seriously its responsibility to implement
Senate policy in an effective and cost efficient manner. To
date, Public Records has developed a processing system that
involves accepting and date stamping reports, copying the date
stamp on the report's mailing envelope as requested by the FEC,
scanning and indexing those reports, then making them available
to the public as soon as possible, usually the following day
through an internal database that can be viewed on public
terminals in 232 Hart Senate Office Building.
Despite the fact that the statute allows the Office of
Public Records two days to transmit reports to the FEC, reports
are typically transmitted to the FEC the same day they are
received. Our office also stores and archives the reports.
Over the years the Office of Public Records has streamlined
this process utilizing a high volume scanner and transmitting
reports to the FEC over an internet connection instead of
relying on a T-1 telecom line, saving our office $5,000 a year.
Despite using the most modern tools available, the processing
of paper documents remains labor intensive.
As you know, the size of FEC reports varies during the
election and non-election years. In 2010, Public Records
processed 6,410 total reports consisting of 522,210 pages. One
report alone exceeded 9,000 pages. In 2011, a non-election
year, the numbers decreased to 3,486 filings and 223,734 pages.
Since the first of this year, Public Records has processed
1,955 reports and 157,032 pages.
S. 219 requires all Senate candidates to file election
campaign reports directly with the FEC. I understand that this
would have the effect that candidates with more than $50,000 in
contributions or expenditures would be required to file
electronically with the FEC. As an officer of the Senate, the
Secretary defers policy decisions to the Senate, and my office
stands ready to implement this proposed change without delay
should the Senate approve the measure.
S. 219-related cost savings for the Office of Public
Records would include staff hours of 1.5 Public Record staffers
to process FEC reports. Such savings in labor hours would be
beneficial to our operations, especially since we have been
given new implementation responsibility under the STOCK Act,
and our budget, like other legislative branch agencies, has
been significantly cut.
As you know, the STOCK Act will expand paper financial
disclosure filings in the short term to include periodic
transaction reports which will initially require scanning and
indexing paper reports in a system similar to the current one
used for FEC reports.
The Sergeant at Arms, which provides technical support for
the Office of Public Records' highly customized FEC and
Lobbying Disclosure Act filing systems and databases, must
periodically upgrade the FEC processing application for
maintenance purposes. The last major upgrade of the system took
four months of staff time from Sergeant at Arms technical
staff. Elimination of the current FEC processing system and
database would result in Sergeant at Arms manpower savings and
would allow that organization to redirect resources and
manpower to our joint effort to build an electronic financial
disclosure system.
Again, I appreciate the opportunity to share information on
the important work of our Office of Public Records. Our office
has appreciated the support of the Committee over the years on
a variety of issues. And in particular, I want to express my
appreciation for your support as we implemented new electronic
lobbying filing requirements under the Honest Leadership Open
Government Act.
We stand ready to implement S. 219 if enacted. Thank you.
[The prepared statement of Ms. Erickson is included in the
record]
Chairman Schumer. Thank you, Madam Secretary. And now we
will hear from Mr. Ryan.
STATEMENT OF PAUL RYAN, THE CAMPAIGN LEGAL CENTER
Mr. Ryan. Good morning, Mr. Chair, distinguished Committee
members. Thank you for this opportunity to provide my views
this morning on S. 219, the Senate Campaign Disclosure Parity
Act. I have submitted more detailed written testimony for the
record.
The improvement in Senate-related campaign finance
disclosure that would result from the passage of S. 219 is long
overdue and the Campaign Legal Center strongly supports this
bill.
All or nearly all federal candidates and political
committees compile their campaign finance data using computers
and sophisticated software. Computerization of this data
collection process has been the norm for more than a decade.
Nearly all candidates for the House of Representatives and the
Office of President, and nearly all federal political
committees, also file their campaign finance disclosure reports
electronically directly with the FEC.
This data is then made available to the public quickly in a
searchable format via the FEC's website typically within 24
hours. Senate candidates, however, willfully remain stuck in
the Dark Ages, filing their disclosure reports on paper and
denying the public timely access to the information that the
Supreme Court has repeatedly recognized as being vital to
democracy.
In Citizens United v. FEC, for example, eight of the
Supreme Court's nine justices upheld a challenge disclosure law
and stressed the importance of timely disclosure, noting that
``modern technology makes disclosure rapid and informative.''
The Court continued, ``with the advent of the internet, prompt
disclosure of expenditures can provide shareholders and
citizens with the information needed to hold corporations and
elected officials accountable for their positions and
supporters. This transparency enables the electorate to make
informed decisions and give proper weight to different speakers
and messages.''
Though modern technology and internet undoubtedly make
rapid and prompt disclosure possible, the Senate has, for more
than a decade, refused to utilize such technology. Under
current law, senators compile their campaign finance data
electronically, but then nonsensically hit the print button and
file their disclosure reports with the Secretary of the Senate
in paper format.
The reports are then scanned into an electronic format and
delivered to the FEC, which then prints the reports once again
and reportedly spends more than $400,000 per year paying people
to convert this data back into a searchable digital format
that's eventually uploaded to the FEC's website and finally
made accessible to the public.
This process can take weeks and may deny voters the
important campaign finance data critical to their decision
making on election day until after election day. What reason
can the Senate possibly have for clinging to the archaic paper-
based disclosure system? Unless the Senate's goal is to deny
voters important information and waste millions of taxpayer
dollars in the process in this time of fiscal crisis, the
Campaign Legal Center can fathom no excuse for the Senate's
continued refusal to mandate electronic filing of campaign
finance disclosure reports.
S. 219 presents a simple tax dollar saving fix to the
Senate's broken disclosure system. Under S. 219, Senate
candidates and committees would file campaign finance
disclosure reports electronically with the FEC by the same
rules applicable to all other federal political committees and
candidates. Enactment of S. 219 would save candidates and
committees the printing costs of this present paper-based
system and would save taxpayers the needless expense of turning
those paper reports back into digital searchable format.
More importantly, enactment of S. 219 would bring Senate-
related campaign finance disclosure in step with the rapid,
prompt and effective disclosure promised to voters by the
Supreme Court in Citizens United, ``enabling the electorate to
make informed decisions and give proper weight to different
speakers and messages.''
We call on the Senate to schedule an up or down vote on S.
219 immediately and to pass this long overdue legislation.
Thank you again for this opportunity to testify before you
today.
[The prepared statement of Mr. Ryan is included in the
record]
Chairman Schumer. Well, thank you. And I want to thank both
of you. As a testament to the completeness of your testimony
and the need for this bill, and I think its lack of
controversy, I do not have any questions. Senator Alexander?
Senator Alexander. I thank both witnesses for their
testimony, and neither do I have questions.
Chairman Schumer. Senator Udall?
Senator Udall. I am on the same wave length as both of you
and very much appreciate the witnesses being here. And I
appreciate our Secretary of the Senate, who does a very, very
good job for us.
Chairman Schumer. I agree with those kudos. Okay, so I
believe this legislation is something we can get behind. I am
going to work with my friend, Senator Alexander, to move it
quickly out of committee and through the Senate. Obviously, if
there are similar provisions that have the same kind of
bipartisan support, I would have no objection to hearing--doing
them all together, and my guess, without having talked to him,
neither would Senator Reid.
So, without objection, the hearing record will remain open
for 10 business days for additional statements and documents
submitted for the record. We also request that our witnesses
respond in writing to additional written questions from
Committee members.
I want to thank my colleagues, Senator Udall, Senator
Alexander, as well as Senator Tester, for being here. The
hearing is now adjourned.
[Whereupon, at 10:00 a.m., the Committee was adjourned.]
APPENDIX MATERIAL SUBMITTED
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