[Senate Hearing 112-863]
[From the U.S. Government Publishing Office]
S. Hrg. 112-863
TAKING BACK OUR DEMOCRACY: RESPONDING TO CITIZENS UNITED AND THE RISE
OF SUPER PACS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JULY 24, 2012
__________
Serial No. J-112-89
__________
Printed for the use of the Committee on the Judiciary
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86-915 WASHINGTON : 2012
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS
DICK DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island JON KYL, Arizona
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TOM COBURN, Oklahoma
Joseph Zogby, Democratic Chief Counsel and Staff Director
Walt Kuhn, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1
prepared statement........................................... 40
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 6
prepared statement........................................... 43
WITNESSES
Witness List..................................................... 39
Baucus, Hon. Max, a U.S. Senator from the State of Montana....... 4
prepared statement........................................... 46
Sanders, Hon. Bernard, a U.S. Senator from the State of Vermont.. 7
prepared statement........................................... 50
Udall, Hon. Tom, a U.S. Senator from the New Mexico.............. 9
prepared statement........................................... 57
Edwards, Hon. Donna, a Representative in Congress from the State
of Maryland.................................................... 11
Roemer, Hon. Charles ``Buddy'', former Congressman and former
Governor, State of Louisiana, Baton Rouge, Louisiana........... 14
prepared statement........................................... 61
Shapiro, Ilya, Senior Fellow in Constitutional Studies, Cato
Institute, Washington, DC...................................... 15
prepared statement........................................... 66
Lessig, Lawrence, Roy L. Furman Professor of Law and Leadership,
Harvard Law School, Cambridge, Massachusetts................... 18
prepared statement........................................... 70
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union (ACLU), Laura W. Murphy, Director,
Washington Legislative Office, Michael W. Macleod-Ball, Chief
of Staff/First Amendment Counsel, and Gabriel Rottman,
Legislative Counsel/Policy Advisor, July 24, 2012, joint letter 111
American Sustainable Business Council, David Levine, Chief
Executive Office and Co-Founder, Washington, DC, July 23, 2012,
letter......................................................... 120
Americans for Campaign Reform, Concord, New Hampshire, statement. 123
Ben & Jerry's Homemade, Inc, Jostein Solheim, Chief Executive
Officer, South Burlington, Vermont, July 11, 2012, letter...... 126
Center for Competitive Politics, Alexandria, Virginia, statement. 129
Center for Media and Democracy, Lisa Graves, Executive Director,
and Brendan Fischer, Staff Counsel, Madison, Wisconsin; article
``Super PACs and Beyond.''..................................... 138
Beyond Super PACs, article....................................... 145
Common Cause, Bob Edgar, President and Chief Executive Office,
Washington, DC, statement...................................... 152
Demos Ideas & Action, Adam Lioz, Counsel, New York, New York,
statement...................................................... 160
Free Speech for People, Jeffrey D. Clements, Co-Founder and
President, Amherst, Massachusetts, statement................... 170
Heagarty, Chris, former North Carolina State Representative, Law
Offices of Chris Heagarty, PLLC, Raleigh, North Carolina,
statement...................................................... 187
Hubbard, Rick, MBA, JC, South Burlington, Vermont, July 13, 2012,
letter......................................................... 194
Lessig, Lawrence, Roy L. Furman Professor of Law and Leadership,
Harvard Law School, Cambridge, Massachusetts, attachment....... 198
Move to Amend, Salt Lake City, Utah, July 18, 2012, letter....... 202
People for the American Way, Michael B. Keegan, President,
Washington, DC, July 24, 2012, letter.......................... 222
Public Campaign's, Washington, DC, statement..................... 241
Washington Public Campaigns, John E. King, President, Seattle,
Washington, statement.......................................... 245
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
preiously printed by an agency of the Federal government or
other criteria determined by the Committee:.................... 247
Torres-Spelliscy, Ciara, Assistant Professor of Law, Stetson Law,
Tampa, Florida, Part 1, see link: http://papers.ssrn.com/sol3/
papers.cfm?abstract--id=2046832................................ 247
TAKING BACK OUR DEMOCRACY: RESPONDING TO CITIZENS UNITED AND THE RISE
OF SUPER PACS
----------
TUESDAY, JULY 24, 2012
U.S. Senate,
Subcommittee on the Constitution,
Civil Rights, and Human Rights,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:34 p.m., in
Room SH-216, Hart Senate Office Building, Hon. Richard J.
Durbin, Chairman of the Subcommittee, presiding.
Present: Senators Durbin, Leahy, Whitehouse, Klobuchar,
Coons, and Blumenthal.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Chairman Durbin. This hearing of the U.S. Senate Judiciary
Subcommittee on the Constitution, Civil Rights, and Human
Rights will come to order. It is entitled, ``Taking Back our
Democracy: Responding to Citizens United and the Rise of Super
PACs.'' I welcome those who have joined us in the hearing room,
those watching live online, and those following the hearing on
social media using the hashtag Citizens United. Someday I will
understand what I just said.
[Laughter.]
Chairman Durbin. This is the second hearing that this
Committee has held on the impact of Citizens United, and after
my opening statement, I am going to recognize Senator Graham,
the Ranking Member, and Senator Leahy, Chairman of the Full
Committee.
Today we will examine the dramatic rise in spending by
Super PACs that are largely funded by corporations and wealthy
individuals. We will also consider proposed legislation and
constitutional amendments to stem this tide.
Since the Supreme Court's decisions in Citizens United and
SpeechNow, a later decision by the D.C. Court of Appeals, we
have witnessed the rapid rise of Super PACs and the
unprecedented influence by corporations and wealthy individuals
seeking to advance their political agenda.
In 2006, outside groups spent $70 million to influence the
Federal midterm election. Four years later, it was up to $294
million, more than four times the amount. That is four times
the amount since 2006, and by all accounts they are going to
break all records this Presidential election year.
Ordinary Americans often have no idea who is bankrolling
the omnipresent political advertising. In 2006, secret donors
made up one percent of all outside spending--one percent. Four
years later, after Citizens United and the rise of Super PACs,
secret donors rocketed to 44 percent of outside spending.
Studies show that as the amount of money floating campaigns
increases, disclosure and transparency decline. In a democracy
that values openness and voter participation, the voters ought
to know who is paying for the ads. We should call them not
``Super PACs'' but ``Super Secret PACs'' because the reality is
the public has shockingly little information about them.
The little that we have been able to learn has identified
some major donors. Half of all Super PAC money being spent in
the Presidential election is coming from 22 people:
millionaires and billionaires who are buying their way in.
To be clear, I do not begrudge them any business success.
They have a right to be heard. However, they do not have a
right to be the only voice heard. Just because wealthy donors
that are behind the Super PACs have achieved economic success
does not mean they have earned the right to buy or control our
political agenda. Sadly, it appears that is happening.
According to a recent report on campaign elections, Super
PACs threatened to purchase every last minute of available
television advertising space for the fall election,
exponentially driving up the cost of these ads, especially in
battleground States. As a result, a voter may never hear
directly from State and local candidates. I thought Citizens
United was about giving the voters more information. These
candidates can be kept off the air entirely due to the rising
cost and fact that they are not entitled to reasonable access
to the air waves like Federal candidates.
There are 314 million people in this country whose lives,
jobs, safety, and health are impacted by decisions made by
elected officials. Can we still proclaim to be the world's
model for free elections with open debate when we allow 22
wealthy people to control the terms of that debate and silence
the voices of others? The public may not know the agendas of
those who are buying these ads, but I can assure you that the
politicians they have supported will once they begin calling
after the election.
There is a series of legislative proposals that would stem
this dangerous tide of secret special interest money that is
flowing into our elections. I have introduced Fair Elections
Now. It would create a public financing system that will free
candidates from the dangerous reliance on Super PACs once and
for all. Under Fair Elections, viable candidates who qualify
for the program would raise a maximum of $100 from any single
donor. The candidates would then receive matching funds and
grants sufficient to run a competitive campaign. It is a
totally different approach. It really means that we would have
campaigns more substantive, maybe shorter, maybe some real
debates. Sound interesting?
Fair Elections would fundamentally reform our broken system
and put the average citizen back in control. Last week, the
Senate voted on the DISCLOSE Act, a simple proposition. Who is
paying for these ads? A majority of the Senate, including every
Democratic Member of this Committee, voted to support the
measure. I want to thank Senator Whitehouse, who is a Member of
the Committee, for his leadership. The bill is simple. It
requires Super PACs and other big spenders to disclose all
donors who give $10,000 or more. In other words, it would write
into law the same basic concept of disclosure that the Supreme
Court says it endorsed in Citizens United.
Congress could pass these two bills right now and make a
world of difference. But with a Supreme Court that has not been
shy about overturning precedent and disregarding congressional
intent, passing these pieces of legislation may not be enough.
After much deliberation, I have, with some hesitation, reached
the conclusion that a constitutional amendment is necessary to
clean up our campaign finance system once and for all. I have
been reluctant to sponsor constitutional amendments. Some of my
colleagues sponsor a lot of them. I think you ought to be
careful not to take a roller to a Rembrandt, and I have tried
to wait for those moments in history where I thought it was
necessary. I think this is one of those moments.
Slavery and the denial of basic freedom of Americans was
the law of the land before and after Dred Scott, but many
fought, bled, and died so that the 14th, 15th, and 16th
Amendments would ensure that America lived up to its promise of
equality. Those who fought for women's suffrage for decades
were discouraged by the Supreme Court's ruling in Minor v.
Happersett, but years of activism were rewarded when the 19th
Amendment was passed.
The Supreme Court's decision in Breedlove v. Suttles
affirmed the imposition of poll taxes that prevented many
African Americans and poor from voting. Those fighting for
equal ballot access rallied to pass the 24th Amendment, and
their victory was completed when State poll taxes were
invalidated by Harper v. Board of Elections.
So it is an uphill battle, and it may take years, but the
passage of these five amendments remind us that grassroots
movement can put our country back on the right course after a
Supreme Court decision like Citizens United gets it dead wrong.
That grassroots movement is well underway. Stacked over there
in the corner are 1,959,063 petition signatures from Americans
across the Nation representing every State in the Union in
support of a constitutional amendment to stop the negative
influence of secret money from special interest groups and
individuals.
Today we are going to hear testimony from some of my
colleagues who have responded to this call by coming up with
their own approaches, constitutional amendments. I am looking
forward to their testimony. I am going to yield the floor when
Senator Graham arrives so that he can speak, and the same for
Senator Leahy.
The first panel is seated. There have been 13
constitutional amendments introduced in the House and Senate,
and my colleagues have taken many different approaches, but are
all united in the belief that Citizens United and its progeny
are bad for America. I am pleased to be joined today by some of
the Members who have taken a leadership role.
First, Senator Max Baucus, senior Senator from the State of
Montana, Chairman of the Senate Finance Committee. In January
of this year, Senator Baucus introduced his constitutional
amendment, Senate Joint Resolution 35. His presence here today
is particularly timely since just a few weeks ago, the Supreme
Court struck down Montana's century-old ban on corporate
political contributions in State elections.
Senator Baucus, the floor is yours.
STATEMENT OF THE HONORABLE MAX BAUCUS, A UNITED STATES SENATOR
FROM THE STATE OF MONTANA
Senator Baucus. Thank you, Mr. Chairman.
President Franklin Delano Roosevelt once said, ``The
ultimate rulers of our democracy are not a President and
Senators and Congressmen and government officials, but the
voters of this country.''
People in charge, we are just hired hands. We have got lots
of great players back in our home States. We are the employees,
and it is the people in our States that decide who they are
going to elect, unelect, and give us direction as to what they
think we should do.
I sit before you today on behalf of those voters--in my
State, nearly one million Montanans, those are the folks that I
work for, as well as over 1.7 million Americans we all serve
who have signed those petitions over there that you referred
to. They have signed that petition calling for a constitutional
amendment, some kind of amendment that this Committee is now
considering at this moment.
That is 1.7 million signatures. Those are mothers, fathers,
employers, veterans, school teachers. They are Americans that
we were sent here to serve.
I must say, as a Montanan, this issue is deeply personal to
me, and let me tell you why.
At the top of our State Capitol building in Helena,
Montana, sits a beautiful copper dome. Nearly a century ago,
this copper dome was not just for decoration. It was a symbol
of what we call in Montana and other parts of the country, the
symbol of the ``copper barons.'' Now, who are they? They are
the three major folks, extremely wealthy, who fought for and
controlled the production of copper in Butte, Montana. Butte,
Montana, is known as the richest hill on earth. One of them was
a fellow named William Clark. William Clark is the largest
benefactor to the Corcoran Gallery here in Washington, D.C. In
today's dollars, he would rival Warren Buffett or Bill Gates.
He was that wealthy.
While miners were working underground, what was William
Clark doing? William Clark was buying elections with his money.
In fact, it was common for corporations in our State, and
probably other States, to buy elections with their money.
Remember, back then we were elected by State legislatures,
not by the people. Legislatures decided who was going to serve
in the U.S. Senate.
In 1899, William Clark bribed the Montana State Legislature
into appointing him to serve here in the U.S. Senate. Well, the
Rules Committee had the goods on him because he actually
threw--or his people did--bundles of dollars over the transom
in hotels where the State legislators were staying, passing
laws in the State of Montana. In fact, he is quoted as saying,
``I never bought a man who was not for sale.''
The Rules Committee sat down and met. What would they do
with this guy, William Clark, who had clearly bribed his way to
the U.S. Senate?
Well, William Clark was no dummy. While the Rules Committee
was meeting, and they had the goods on him--this is back around
1900--what did he do? He used his money to do something pretty
clever. He arranged to have the Governor of the State of
Montana leave Montana and go to San Francisco. He bought him
off. And then he, William Clark, resigned. He resigned his
position in the U.S. Senate and arranged to have the Lieutenant
Governor, then Acting Governor, appoint him to the U.S. Senate,
and that is how William Clark became a Senator. He bought his
way into the U.S. Senate.
That led to the 17th Amendment. That incident and the
scandal in Montana led to the passage of the 17th Amendment.
And Montana also responded by passing laws prohibiting
corporations from contributing to elections. We were so
outraged with what William Clark and his people did in the
State of Montana. And as you said, Citizens United overturned
that and made it impossible for Montana to enforce this law
that was deeply embedded in our culture, and the recent
decision by the Court in the aftermath of Citizens United made
that very clear. We in Montana cannot proceed.
So I believe, as you believe, that the solution here is a
constitutional amendment. That is about the only way we can
solve this, to restore power and put power back in the hands of
the people, not in the hands of the corporations like William
Clark exercised back then.
There was a 2012 poll which says that 63 percent of
Americans believe that corporations and unions should not be
able to spend unlimited amounts of dollars in elections. And
the people we work for, at least in my State, and I think
across the country, agree.
Again, the surest way to get at the heart of the matter, I
think, is a constitutional amendment.
In the Federalist Papers, James Madison noted that there
would be circumstances when ``useful alterations [to the
Constitution] will be suggested by experience.''
Still this is a process that requires significant
deliberation. It should. As you have said, Mr. Chairman, you do
not just amend the constitution lightly. And I do not take a
proposal to amend the Constitution lightly at all. And I agree
with James Madison that we should amend the Constitution only
on ``great and extraordinary occasions.''
This is one of those occasions, as you said just a few
minutes ago. And Congress, I think, owes it to the American
people to fully study, discuss, and debate the merits of an
amendment.
My proposal--and there are many here--would right the wrong
of Citizens United, simply overturn it. It would restore
Congress' and States' ability to regulate political spending by
corporations and labor in elections and then give people in
States like Montana and other States the power to once again
say, ``We are not for sale.''
It is clear to me that action is needed to restore
Americans' faith in our political and electoral process, and I
urge my colleagues to join me in supporting this amendment.
[The prepared statement of Senator Baucus appears as a
submission for the record.]
Chairman Durbin. Thanks a lot, Senator Baucus. I appreciate
your testimony, and we would love to have you stay, but if you
have other things calling you in the Senate Finance Committee
and other places, you are welcome to leave.
Senator Baucus. Thank you.
Chairman Durbin. Ordinarily I would then recognize Senator
Sanders, but it turns out the senior Senator from Vermont
showed up, and he is Chairman of the Committee, and I hope,
Senator Sanders, that you will give us a chance here for
Senator Leahy to say a word or two in opening, and then I will
recognize you next.
Senator Leahy.
STATEMENT OF THE HONORABLE PATRICK J. LEAHY, A UNITED STATES
SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. Thank you, Chairman Durbin.
Listening to our friend Senator Baucus and watching what
has happened on television or watching elections the last two
and a half years, we have seen the corrosive effects of the
Supreme Court's decision in Citizens United. It is really hard
to think of any Supreme Court decision that has had such a
negative impact on our political process.
Nobody who has heard the barrage of negative ads from
always undisclosed and, even worse, unaccountable sources can
deny the impact of Citizens United. Nobody who has strained to
hear the voices of the voters lost among the noise from Super
PACs can deny that by extending First Amendment ``rights'' in
the political process to corporations, five Justices put at
risk the rights of individual Americans to speak to each other
and, crucially, to be heard. The idea that a corporation is a
person is as crazy as saying, ``We elected General Eisenhower
President, then why can't we elect General Motors President? ''
It makes no sense.
But those same five Justices doubled down, as Senator
Baucus would agree, when they summarily struck down the 100-
year-old Montana law.
These Supreme Court decisions go against all kinds of
longstanding laws and legal precedents, but also against common
sense and against the people. Corporations are not people.
Corporations do not have the same rights, the same morals, or
the same interests. Corporations cannot vote in our democracy.
They are artificial legal constructs meant to facilitate
business. Now, the Founders of this country knew that.
Vermonters and Americans across our country have long
understood this. Five members of the Supreme Court apparently
do not.
Like most Vermonters, I believe that this is a harmful
decision that needs to be fixed. I have sought legislative
remedies, of course, because that would be quicker, although I
believe constitutional remedies have to be considered. That is
why I held the very first congressional hearing on that
terrible decision after it was issued. I worked with Senator
Whitehouse, Senator Schumer, and others to amend the DISCLOSE
Act, bring forth the DISCLOSE Act that could at least cut out
some of the worst parts of Citizens United.
I have worked with Senator Durbin, the Chairman of this
Subcommittee, to schedule today's hearing. And, Senator Durbin,
I do thank you for holding this hearing. It is extremely
important. He has been not only a leader on this, but he has
been a leader in shedding light on the effort in so many States
to deny millions of Americans access to the ballot box through
voter purges and voter ID laws. It is amazing to find people
trying to cut out the right to vote for individual Americans.
They are saying we are going to cut out the right for
individual Americans to vote, but we are going to give
unlimited power for corporations to involve themselves in
secret spending to change the outcome of our elections. We have
to work to restore the right balance in our democracy to
protect the form of government Americans have fought and died
for, what President Lincoln called our government of, by, and
for the people.
The last 236 years have been one toward greater inclusion
and participation by all Americans. That is not what is
happening here.
I will put my full statement, Mr. Chairman, in the record,
but I look at a little State like mine, a tiny fraction of the
corporate money being spent could overwhelm us in our State.
That is why more than 60 Vermont towns passed resolutions on
Town Meeting Day calling for action to address Citizens United.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Chairman Leahy. Also, Mr. Chairman, I would ask consent
that a statement by a Vermonter, Rick Hubbard of South
Burlington, be included in the record.
Chairman Durbin. Without objection.
[The prepared statement of Mr. Hubbard appears as a
submission for the record.]
Chairman Durbin. Thank you very much, Senator Leahy.
Let me now recognize Senator Sanders, the junior Senator
from Vermont. He has introduced Senate Joint Resolution 33 in
an effort to respond to Citizens United and related cases.
Senator Sanders enjoys a larger grassroots following than
probably any other Senator, and we know that he is frequently
in touch with people who are following this issue very
carefully.
Senator Sanders, please proceed.
STATEMENT OF THE HONORABLE BERNARD SANDERS, A UNITED STATES
SENATOR FROM THE STATE OF VERMONT
Senator Sanders. Thank you very much for convening this
enormously important hearing, and thank you for your very
strong opening remarks. And I thank Senator Leahy as well for
his strong statement.
Mr. Chairman, as you have indicated a moment ago, the
history of our country has been to drive toward a more and more
inclusive democracy--a democracy which would fulfill Abraham
Lincoln's beautiful phraseology at Gettysburg when he talked
about ``a Nation of the people, by the people, and for the
people.''
We all know that American democracy has not always lived up
to this ideal. When this country was founded, only white male
property owners over age 21 could vote, but people fought to
change that, and we became a more inclusive democracy.
After the Civil War, we amended the Constitution to allow
non-white men to vote. We became a more inclusive democracy.
In 1920, after years of struggle and against enormous
opposition, we finally ratified the 19th Amendment guaranteeing
women the right to vote. We became a more inclusive democracy.
In 1965, under the leadership of Martin Luther King, Jr.,
and other great heroes, the civil rights movement finally
succeeded in outlawing racism at the ballot box, and LBJ signed
the Voting Rights Act. We became a more inclusive democracy.
One year after that, the Supreme Court ruled that the poll
tax was unconstitutional, that people could not be denied the
right to vote because they were low income. We became a more
inclusive democracy.
In 1971, young people throughout the country were saying,
``We are being drafted to go to Vietnam and get killed, but we
are 18 and we do not have the right to vote.'' We passed a
constitutional amendment. The voting age was lowered to 18. We
became a more inclusive democracy.
Mr. Chairman, the democratic foundations of our country and
this movement toward a more inclusive democracy are now facing
the most severe attacks, both economically and politically,
that we have seen in the modern history of the United States.
Tragically--and I say these words advisedly--we are well on our
way to seeing our great country move toward an oligarchic form
of government where virtually all economic and political power
rests with a handful of very wealthy families. Citizens United
is a part of that process, and that is a trend we must reverse.
Economically, the United States today has by far the most
unequal distribution of wealth and income of any major country
on earth, and that inequality is worse today than it was at any
time since the late 1920s. One family, the Walton family of
Wal-Mart fame, owns more wealth than the bottom 40 percent of
the American people. The bottom 60 percent own less than two
percent of the wealth. The top one percent owns 40 percent of
the wealth.
Now, that is what is going on economically in this country.
A handful of billionaires own a significant part of the wealth
of America and have enormous control over our economy.
What the Supreme Court did in Citizens United is say to
these same billionaires, ``You own and control the economy. You
own Wall Street, you own the coal companies, you own the oil
companies. Now for a very small percentage of your wealth, we
are going to give you the opportunity to own the U.S.
Government.'' That is the essence of what Citizens United is
all about, and that is why it must be overturned.
Let us be clear. Why should we be surprised that one family
worth $50 billion is prepared to spend $400 million in this
election to protect their interests? That is a small investment
for them and a good investment. But it is not just the Koch
brothers.
Mr. Chairman, there are at least 23 billionaire families
who have contributed a minimum of $250,000 each into the
political process up to now during this campaign, and my guess
is that number is really much greater because many of these
contributions are made in secret. In other words, not content
to own our economy, the one percent want to own our government
as well.
The constitutional amendment that Congressman Ted Deutch
and I have introduced states the following: ``For-profit
corporations are not people and are not entitled to any rights
under the Constitution. For-profit corporations are entities of
the States and are subject to regulation by the legislatures of
the States so long as the regulations do not limit the freedom
of the press. For-profit corporations are prohibited from
making contributions or expenditures into political campaigns.
Congress and the States have the right to regulate and limit
all political expenditures and contributions, including those
made by a candidate.''
I am proud to say that the American people are making their
voices heard on this issue. You have close to two million
signatures right there on a petition. In my State of Vermont,
we have seen dozens and dozens of towns go on record as saying
they support a constitutional amendment, and we have six States
having done the same.
You have some very good amendments here with Senator
Baucus, Senator Udall, and Congresswoman Edwards. I hope we
move on this issue because the future of American democracy is
at stake.
Thank you very much.
[The prepared statement of Senator Sanders appears as a
submission for the record.]
Chairman Durbin. Thanks, Senator Sanders.
Senator Tom Udall is the junior Senator from New Mexico and
offered one of the first amendments in the Senate on this
subject. We are glad you are here today, and the floor is
yours.
STATEMENT OF THE HONORABLE TOM UDALL, A UNITED STATES SENATOR
FROM THE STATE OF NEW MEXICO
Senator Udall. Thank you, and good afternoon, Chairman
Durbin, Chairman Leahy, and Senator Coons.
In January 2010, the Supreme Court issued its opinion in
Citizens United v. FEC. Two months later, the D.C. Circuit
Court of Appeals decided SpeechNow v. FEC. These two cases
opened the door to Super PACs. Millions of dollars now pour
into negative and misleading campaign ads. This is poisoning
our democracy, and often we do not even know who is doing the
poisoning.
Our campaign finance system was in trouble before these
opinions. We have been on this dangerous path for a long time.
The Citizens United and SpeechNow decisions just picked up the
pace, but the Court laid the groundwork many years ago.
We can go all the way back to 1976. That year, the Court
held in Buckley v. Valeo that restricting independent campaign
expenditures violates the First Amendment right to free speech.
In effect, money and speech are the same thing.
This is tortured logic. It is divorced from the reality of
political campaigns, and it is the basis for the Court's ruling
in Citizens United. The outcome is hardly surprising.
Americans' right to free speech is now determined by their net
worth. For average Americans, they get one vote. They go to the
polls and cast their ballot with millions of others. But for
the wealthy and the super wealthy, Buckley says they get so
much more, says that they can spend unlimited amounts of money
to influence our elections. And now with Citizens United that
right has been extended to corporations and other special
interests.
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.
We have a broken system based on a deeply flawed premise.
There are only two ways to change this: the Court could
overturn Buckley and Citizens United, which is unlikely with
its current ideological makeup; or we amend the Constitution,
we overturn the previous bad Court decisions and prevent future
ones. Until then, we will fall short of real reform. Until
then, the flood of special interest cash will continue.
That is why I, along with several Members of this
Subcommittee, introduced S.J. Res. 29 last November. We are up
now to 23 cosponsors, with several other Senators expressing
support for a constitutional amendment in floor speeches and
press interviews.
This amendment is similar to bipartisan proposals in
previous Congresses. It would restore the authority of
Congress--stripped by the Court--to regulate the raising and
spending of money for Federal political campaigns. This would
include independent expenditures, and it would allow States to
do so at their level. It would not dictate any specific
policies or regulations. But it would allow Congress to pass
sensible campaign finance reform legislation that withstands
constitutional challenges.
In Federalist No. 49, James Madison argued that the U.S.
Constitution should be amended only on ``great and
extraordinary occasions.'' I believe we have reached one of
those occasions. Free and fair elections are a founding
principle of our democracy. They should not be for sale to the
highest bidder.
I know amending the Constitution is difficult. And it
should be. Last week, during the debate on the DISCLOSE Act,
Chairman Leahy said that we must pass that bill now because of
the ``years and years that a constitutional amendment might
take.'' The Chairman makes a fair point.
But those ``years and years'' started decades ago. There is
a long--and, I might add, bipartisan--history here. Many of our
predecessors from both parties understood the corrosive effect
money has on our political system. They spent years championing
the cause.
In 1983--the 98th Congress--Senator Ted Stevens introduced
an amendment to overturn Buckley. And in every Congress from
the 99th to the 108th, Senator Fritz Hollings introduced
bipartisan constitutional amendments similar to the one I have
introduced. After he retired, Senators Schumer and Cochran
continued the effort in the 109th Congress.
And that was before Citizens United, before things went
from bad to worse. The out-of-control spending since that
decision has further poisoned our elections. But it has also
ignited a broad movement to amend the Constitution.
Across the country, more than 275 local resolutions have
passed calling for a constitutional amendment to overturn
Citizens United. Legislatures in six States--California,
Maryland, Hawaii, Vermont, Rhode Island, and my home State of
New Mexico--have called on Congress to send an amendment to the
States for ratification. Many more States have similar
resolutions pending. And as has been mentioned here, 1.9
million citizens have signed petitions in support of an
amendment. More than a hundred organizations, under the banner
of United for the People, are calling for constitutional
remedies.
But an amendment can only succeed if Republicans join us in
this effort. They have in the past. I know the political
climate of an election year makes things even more difficult,
but I am hopeful that we can work together and that we can
reach consensus on a bipartisan constitutional amendment that
can be introduced early in the next Congress.
We must do something. The voice of the people is clear, and
so is their disgust.
And with that, Senator Durbin, thank you for your
courtesies on going a little bit over time. I would ask that I
put my full statement into the record and once again thank you
for this very important and timely hearing.
[The prepared statement of Senator Udall appears as a
submission for the record.]
Chairman Durbin. Thank you, Senator Udall. Of course, your
statement will be in the record.
It is my pleasure now to introduce Congresswoman Donna F.
Edwards, representing Maryland's Fourth Congressional District,
15 years of experience on campaign finance reform, voting
rights, and government ethics issues. She was the first Member
of the House to introduce a constitutional amendment responding
to Citizens United. She has been actively engaged in educating
the public about this effort, and we are glad to have you on
this side of the Rotunda. Please proceed.
STATEMENT OF THE HONORABLE DONNA EDWARDS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND
Ms. Edwards. Thank you, Mr. Chairman, and to all the
Members of the Committee and the Ranking Member, I really do
appreciate the opportunity to be here today to testify. I think
this is an important hearing to examine the pending responses
to the Supreme Court's decision in Citizens United and related
cases.
We do not have any doubt that we have entered into an
unprecedented era in our political system and one in which
Super PACs seem to rule. ``One person, one vote'' seems more
appropriate for a history lesson than a description of our
current elections process.
The danger of Citizens United was heralded by Justice
Stevens in his dissenting opinion. He could not have been more
prescient when he warned that it would ``undermine the
integrity of elected institutions around the Nation.'' Justice
Stevens' warning materialized initially during the 2010
election cycle, but that was just the opening salvo. We have
seen at the start of the 2012 Republican Presidential primaries
the true scope and danger of Citizens United.
Restore Our Future, a Super PAC supporting former Governor
Mitt Romney and run by his former staffers, poured nearly $8
million into Florida.
Winning Our Future, a Super PAC supporting former Speaker
Newt Gingrich, made a $6 million ad buy there.
After being targeted by Restore Our Future, Speaker
Gingrich concluded, ``I think it debilitates politics. I think
it strengthens millionaires and it weakens middle-class
candidates.'' I could not agree more.
This is an equal opportunity corrosion. Democratic-leaning
groups are preparing to play, too, even while doing a little
catch-up with Republican-leaning groups. Sadly, the landscape
continues to darken as we march toward the 2012 general
election.
According to the Center for Responsive Politics, 678 groups
who organized as Super PACs reported receipts of over $280
million and independent expenditures of more than $145 million
already in this election cycle.
Putting an end to the influence of secret money on our
elections I think requires a three-legged stool approach:
First, require increased disclosure of money in political
campaigns;
Second, allow public financing of candidates for Congress.
If we do not own our elections, who will?
Then, third, amend the Constitution to give Congress the
authority that it needs to regulate political expenditures.
I am an original cosponsor of measures that do just that,
and, Mr. Chairman, I want to thank you for your sponsorship and
leadership on the Fair Elections Now Act. And I particularly
want to applaud Senator Whitehouse for his leadership on the
DISCLOSE Act. While these interim reforms should be enacted
into law to mitigate the influx of unregulated money in our
elections, the Citizens United decision leaves Congress, I
think, with really only one true option, and that is, to amend
the Constitution.
As a lawyer and someone who has dedicated nearly 15 years
to working on campaign finance reform, I do not take amending
our Nation's guiding document lightly either. Indeed, as an
advocate and a donor, I spent the better part of my career
shunning attempts by reform groups to support constitutional
amendments.
That all changed with Citizens United. I believe firmly
that such bold action is warranted as we face the threat that
Citizens United poses to the health of the democracy. In its
majority opinion, the Court was clear: Congress does not have
the authority to regulate these expenditures. I do not agree,
but the Court did double down in its conclusion in SpeechNow
and in Bullock. Only an amendment to the Constitution can
provide Congress with the authority it needs.
Fewer than two weeks after Citizens United was released, I
joined with House Judiciary Chairman John Conyers to introduce
the first constitutional amendment to reverse the decision. Our
amendment would have given specific authority to Congress and
the States to regulate corporate expenditures on political
activity by imposing content-neutral regulations and
restrictions on expenditures of funds for political activity by
any corporate entity excluding the media. It is very similar to
Senator Baucus' approach. Ranking Member Conyers and I
reintroduced our amendment in this Congress.
But we are not alone in the fight. You have already
indicated that 14 amendments--three in the Senate and 11 in the
House--have been introduced during the current Congress. We all
agree that corporate money and individual wealth cannot
dominate our politics any longer. But as usual, the public is
way ahead of us. We can see that. Two hundred and seventy-five
cities and towns from Albany to Pittsburgh to Kansas City to
Missoula have passed anti-Citizens United resolutions,
including my home State of Maryland.
The sponsors of a constitutional amendment all came
together, and we agreed to what is called a ``Declaration for
Democracy,'' to declare our support for amending the
Constitution. And today 1,854 public officials, including 92
Members of the House and 28 Senators, over 2,000 business
leaders, and thousands of ordinary citizens have signed their
name to this declaration. And now some are questioning the need
for an amendment, but the Supreme Court has answered that
question pretty unequivocally when it overturned Montana's
century old limits on corporate spending.
The Supreme Court closed the door on reasonable laws to
regulate campaign finance, and except for disclosure, the
constitutional door is the only one that really remains open.
And we owe it to the American people--and, Mr. Chairman, I know
that you agree--to find the consensus that we need and to walk
through the door.
And so I want to thank you for this opportunity and thank
you for your work, and I appreciate the chance to be here
today.
Chairman Durbin. Congresswoman Edwards, thank you for
coming. Senator Udall and Senator Sanders, thank you as well.
Unless my colleagues have a comment or question, I will
thank you once again and invite the second panel to come
forward.
Chairman Durbin. Before you take your seats, I will
administer the oath, which is the custom of this Subcommittee.
If you will please raise your right hand. Do you affirm the
testimony you are about to give before the Committee will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. Roemer. I do.
Mr. Shapiro. I do.
Mr. Lessig. I do.
Chairman Durbin. Thank you. Let the record reflect that all
three witnesses have answered in the affirmative.
Charles (Buddy) Elson Roemer III, former Governor of
Louisiana. Prior to becoming Governor of Louisiana in 1988,
Roemer served four terms in the U.S. Congress from 1981 to
1988. I was honored to serve with him. As Governor, Buddy
Roemer worked with the State legislature to enact sweeping
campaign finance reform. Most recently, Governor Roemer was a
candidate in the 2012 Republican Presidential primary. During
his Presidential campaign, Governor Roemer limited all campaign
contributions to $100, practiced full and immediate disclosure,
and refused to accept contributions from PACs, Super PACs, and
corporations.
Governor Roemer, thank you for joining us today. The floor
is yours.
STATEMENT OF THE HONORABLE CHARLES ``BUDDY'' ROEMER, FORMER
CONGRESSMAN AND FORMER GOVERNOR, STATE OF LOUISIANA, BATON
ROUGE, LOUISIANA
Mr. Roemer. Thank you, Mr. Chairman. Thanks for inviting
me.
Washington, D.C., appears to be broken, with gridlock, an
unreadable tax code that exports American jobs; dumb trade
rather than smart, non-existent budget discipline; too big to
fail in perpetuity. Broken? Yes. But it is bought first. And it
will not be repaired by those who profit from its impairment.
Political campaigns have always required funding, but
citizens do not now fund campaigns. The special interests do,
because they gain a disproportionate say-so in public policy as
a result. This dependence between special interest funding and
political advancement is a form of institutional corruption in
a representative democracy. It is corrupt when the size of your
contribution determines your place in line. It is institutional
when everyone does it, when the invitees to your fundraisers
are from the industries you regulate.
The public's perception is not only that Congress is a do-
nothing, gridlocked institution, more interested in themselves
than in us, but that in order to fund that priority, they go to
where the money is, the special interests, who have never
profited more than now while America hurts.
Four years ago, it became obvious when the two Presidential
nominees received more PAC and other special interest funding
from Washington, DC, and its environs than they did from the
individual contributions of 32 States combined. That is four
years ago. It is now worse. With less than one percent giving
more than 99 percent of all campaign funding, it cannot be
called a Republic for long.
Being on the campaign trail for the past 20 months with a
$100 limit, full disclosure, and refusal of all PAC money, I
saw the skewing of the current system toward the power of the
unlimited givers. I saw multiple candidates pretend non-
coordination with their Super PACs while personally addressing
their Super PAC fundraisers. Uncoordinated? Are we stupid?
I saw qualified candidates excluded from the national
televised debates because they had not raised $500,000 in the
prior 90-day period. How do you do that without taking special
interest money? Raise it from the people, you say. Well, how do
you do that if excluded from the debates?
Free to lead is the qualification of every great President,
yet our institutional corruption places our futures in the
hands of the mega contributors. Who elects them?
When I came to Congress 31 years ago, the debate was
between full disclosure on the part of the conservatives and
caps on giving by liberals. Now we have neither. A
constitutional amendment might be required to address this
imbalance, but it will and should require careful debate.
Statutory solutions can rectify much now. Consider seven quick
points.
One, full disclosure of all contributions and expenditures
used politically. Full disclosure does not solve all our
problems, but sunlight is a powerful disinfectant.
Two, 48-hour reporting for all transactions in the
political marketplace. Actionable, timely disclosure yields the
greatest, most valuable information for the voting public.
Three, no financial contributions or assistance should be
allowed from registered lobbyists.
Four, the limits on PAC contributions should be the same as
exist on individual contributions, whatever they are.
Five, independent, non-coordinated efforts should be
defined by Congress with boundaries set at relatively low
levels of connections to candidate or campaign, disqualifying
an entity.
Six, lobbying of Congress by retiring members should be
disallowed for a period of at least five years post-retirement.
Seven, Congress should enact criminal penalties for the
willful violation of these six points.
Finally, I have come to support the use of public funds for
candidates for Federal office who meet reasonable fundraising
thresholds of small contributions from within their district.
The cost is minimal. The benefits to the anticorruption effort
are powerful. ``We, the people'' is the phrase that guides us,
not ``we, the strongest,'' not ``we, the best and brightest,''
not ``we, the biggest.'' ``We, the people.''
The system is not broken, Mr. Chairman. It is bought.
Action is necessary for a nation at risk. We need a speed limit
on the highway to prevent and protect against corruption and
the appearance of corruption. Just a speed limit, not a ban.
Broad limits, bright sunshine--a Republic.
[The prepared statement of Mr. Roemer appears as a
submission for the record.]
Chairman Durbin. Thank you, Governor Roemer.
Next is Ilya Shapiro. He is a senior fellow in
constitutional studies at the Cato Institute. Mr. Shapiro is an
editor in chief of the Cato Supreme Court Review. He frequently
provides commentary on political and legal issues for major
news outlets. Mr. Shapiro lectures regularly on behalf of the
Federalist Society. He was an Inaugural Washington Fellow at
the National Review Institute. He has worked as an adjunct
professor at George Washington University Law School. Prior to
joining Cato, Mr. Shapiro was a litigator in private practice,
earned his law degree from the highly regarded University of
Chicago and, after graduating, clerked for Judge Grady Jolly on
the U.S. Court of Appeals for the Fifth Circuit.
Mr. Shapiro, please proceed.
STATEMENT OF ILYA SHAPIRO, SENIOR FELLOW IN CONSTITUTIONAL
STUDIES, CATO INSTITUTE, WASHINGTON, DC
Mr. Shapiro. Mr. Chairman and distinguished Members of the
Subcommittee, thank you for this opportunity to discuss
campaign finance law.
Let me first note that Citizens United is one of the most
misunderstood, high-profile cases ever, so I will review what
the case actually said before discussing possible responses.
Citizens United is both more important than you might
think--because it revealed the instability of our system--and
less important, because it does not stand for what many people
say it does. Take, for example, President Obama's famous
statement that the decision ``reversed a century of law that I
believe will open the floodgates of special interests--
including foreign corporations--to spend without limit in our
elections.'' In one sentence, the former law professor made
four errors of law.
First, Citizens United did not reverse a century of law.
The President was referring to the Tillman Act of 1907, which
prohibited corporate donations to candidates and parties.
Citizens United did not touch that. Instead, the overturned
precedent was a 1990 case that, for the first and only time,
allowed a restriction on political speech based on something
other than corruption or the appearance thereof.
Second, the ``floodgates'' point depends on how you define
those terms. As you may have just read in the New York Times
magazine, there is no significant change in corporate spending
this election cycle. There are certainly people running Super
PACs who would otherwise be supporting candidates directly, but
Citizens United did not cause Super PACs, as I will get to
shortly. And the rules affecting the wealthy individuals who
are spending more--be they Sheldon Adelson or George Soros or
the Waltons--have not changed at all. It is unclear that any
floodgates have been opened or which special interests did not
exist before.
Third, the rights of foreigners--corporate or otherwise--is
another issue about which Citizens United said nothing. Indeed,
just this year the Supreme Court summarily upheld the
restrictions on foreign spending in political campaigns.
Fourth and finally, while independent spending on elections
now has few limits, candidates and parties are not so lucky,
and neither are their donors. Again, Citizens United did not
affect laws regarding individual or corporate contributions to
candidates.
More important than Citizens United was SpeechNow.org,
decided two months later in the D.C. Circuit. That case removed
the limits on donations from political action committees, thus
making these PACs ``super'' and freeing people to pool money
the same way one rich person can alone.
And so if you are concerned about the money spent on
elections--though Americans spend more on chewing gum and
Easter candy--the problem is not with the big corporate
players. This is another misapprehension: Exxon, Halliburton,
and all these ``evil'' companies--or even the ``good'' ones--
are not suddenly dominating the political conversation. They
spend little money on political advertising, partly because it
is more effective to lobby, but even more, why would they want
to alienate half of their customers? As Michael Jordan famously
said, ``Republicans buy sneakers too.''
On the other hand, groups composed of individuals and
smaller players now get to speak: your National Federations of
Independent Business and Sierra Clubs, your ACLUs and Planned
Parenthoods. So even if we accept ``leveling the playing
field'' as a proper basis for regulation, the freeing up of
associational speech levels that field.
Moreover, people do not lose rights when they get together,
be it in unions, advocacy groups, clubs, for-profit companies,
or any other way.
Now, I have reviewed the various proposals introduced to
remedy some of Citizens United's perceived ills. The gist is
that if only we can eliminate private money, elections will be
cleaner.
The underlying problem, however, is not the underregulation
of independent spending, but the attempt to manage political
speech in the first place. Political money, is like water: It
will flow somewhere, because what the government does matters,
and people want to speak about their concerns. To the extent
that ``money in politics'' is a problem, the solution is to
reduce the political scope that the money can influence. Shrink
government and you will shrink the amount people spend trying
to get their piece of the pie.
While we await that shrinkage--and my Cato colleagues have
suggestions if you are interested--we do have to address the
core flaw in campaign finance. That original sin was committed
by the Supreme Court, not in Citizens United but in the 1976
case of Buckley v. Valeo. By rewriting the Federal Election
Campaign Act to remove spending limits but not contribution
caps, Buckley upset Congress' balanced reform. That is why
politicians spend all their time fundraising. Moreover, the
regulations pushed money away from candidates and toward
advocacy groups--undermining the worthy goal of government
accountability.
The solution is obvious: Liberalize rather than restrict
the system. Get rid of limits on individual contributions and
then have disclosures for those who donate amounts big enough
for the interest in preventing corruption to outweigh the
potential for harassment. Then the big boys will have to put
their reputations on the line, but not the average person. Let
the voters weigh what a donation source means to them rather
than--with all due respect--allowing politicians to write rules
benefiting themselves.
In sum, we now have a system that is unbalanced and
unworkable. At some point, enough incumbents will feel that
they are losing message control so that they will allow fairer
political markets. Earlier this month, for example, the
Democratic Governor of Illinois signed a law allowing unlimited
contributions where there was significant independent spending.
This is political self-preservation, but that is fine. Once
more politicians realize that they cannot prevent communities
from organizing, they will want to capture more of their
dollars. Stephen Colbert would then have to focus on other laws
to lampoon, but I am confident that he can do that, and we will
be better off.
Ultimately--and I will conclude with this, Mr. Chairman--
the way to ``take back our democracy''--to invoke this
hearing's name--is not to give government more power to decide
who should speak and how much.
Thank you again for having me. I welcome your questions.
[The prepared statement of Mr. Shapiro appears as a
submission for the record.]
Chairman Durbin. Thank you very much, Mr. Shapiro.
Lawrence Lessig is a professor of law at Harvard Law School
and director of the Edmond J. Safra Center for Ethics at
Harvard University, a nationally recognized scholar, author,
speaker. Professor Lessig is one of our Nation's leading
authorities on constitutional law and campaign finance reform.
Prior to teaching at Harvard, Professor Lessig clerked for
Judge Richard Posner on the Seventh Circuit Court of Appeals in
Chicago and subsequently for Justice Antonin Scalia on the U.S.
Supreme Court. In addition to serving on the boards of other
nonprofit organizations, Professor Lessig is on the Advisory
Board of the Sunlight Foundation, an organization dedicated to
using the Internet and technology to foster a more open and
transparent government. Many of our witnesses make many
sacrifices to appear before us, but none makes a greater
sacrifice than your son, who interrupted his family vacation to
accompany his father to this hearing, so we thank him for
joining us.
[Laughter.]
Chairman Durbin. Professor Lessig, the floor is yours.
STATEMENT OF LAWRENCE LESSIG, ROY L. FURMAN PROFESSOR OF LAW
AND LEADERSHIP, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS
Mr. Lessig. Thank you, Mr. Chairman, and I commend this
Committee for holding this hearing, which is really a
celebration of the extraordinary grassroots movement led by new
organizations, such as Free Speech for People and Move to
Amend, and more established organizations, such as People for
the American Way and Common Cause, that has developed to demand
the reversal of Citizens United and an end to the system for
funding elections that leads most Americans to believe that
this government is corrupt.
Yet this hearing could only be the beginning of the serious
work that will be required to address the problem in America's
democracy that Citizens United has come to represent, and that
problem can be stated quite simply: The people have lost faith
in their government. They have lost the faith that their
government is responsive to them because they have become
convinced that their government is more responsive to those who
fund your campaigns. As all of you--Democrats, Republicans, and
Independents alike--find yourselves forced into a cycle of
perpetual fundraising, you become, or at least most Americans
believe you become, responsive to the will of the funders. Yet
the funders are not the people; 0.26 percent of Americans give
more than $200 in a congressional campaign, 0.05 percent give
the maximum amount to any congressional candidate, 0.01
percent, the one percent of the one percent, give more than
$10,000 in an election cycle. And in the current Presidential
election cycle, 0.000063 percent--that is 196 citizens--have
funded 80 percent of the indivdual Super PAC contributions so
far.
There are two elections in America today--not the primary
and general election, but the money election and the voting
election. And to win the voting election, you must first
compete in the money election. But unlike the voting election,
not every citizen can participate equally in the money
election. Instead, it is only the very few who can compete at
all. And it is because of this money election that we have
evolved a system in which the elected are dependent upon the
tiniest slice of America. Yet that tiny slice is in no way
representative of the rest of America.
This, Senators, is corruption. It is not corruption in the
criminal sense. I am not talking about bribery or quid pro quo
influence peddling. It is instead corruption in a sense that
our Framers would certainly and easily have recognized. They
architected a government that in this branch, at least, as
Federalist 52 puts it, would be ``dependent upon the people
alone,'' but you have evolved a government that is dependent
upon the people and dependent upon the funders. And that
different and conflicting dependence is a corruption of our
Framers' design, now made radically worse by the errors of
Citizens United.
But in responding to those errors, please, do not lose
sight of one critical fact: On January 20, 2010, the day before
Citizens United was decided, our democracy was already broken.
Citizens United may have shot the body, but the body was
already cold. And any response to Citizens United must also
respond to that more fundamental corruption.
Now, how you do that--how you do that--will be as important
as what you do. For America's cynicism about this government,
whether fair or not, is too profound to imagine that this
Congress alone can craft a response that would earn the
confidence of the American people. Instead, this Congress needs
to find a process that could discover the right reforms that
itself could earn the trust of the American people. That
process should not be dominated by politicians or law
professors, indeed, by any of the professional institutions of
American Government. It should be dominated instead by the
people.
I have submitted today to this Committee the outline of one
such plan, what I called a series of ``citizen conventions,''
constituted as a kind of civic jury and convened to advice
Congress about the best means for reform. But whether it is
this process or another, your challenge is to find a process
that could convince America that a corrupted institution can
fix itself.
The confidence of the American people in this government,
in you, is at a historic low. That is not because of the number
of Democrats sitting in Congress. It is not because of the
number of Republicans. And it will not change simply by
changing the number of Democrats or Republicans sitting in
Congress. Instead, confidence is at a historic low because of
the dependence that all of you and all of us have allowed to
evolve in this government that draws you away from a dependence
upon the people alone.
I thank you for the beginning this hearing represents, and
more importantly, I thank the extraordinary citizens who have
united to get you to focus upon this issue. But I urge you now
to act in a way that has a real chance to restore that
confidence of the people in their government.
Thank you very much.
[The prepared statement of Mr. Lessig appears as a
submission for the record.]
Chairman Durbin. Thank you, Professor Lessig.
Let me just note for the record here that at 3:40, in just
a few moments here, we are going to suspend the hearing for a
moment of silence. It is the 14th-year anniversary of the death
of two of our Capitol Hill policemen, and across Capitol Hill
that moment of silence will be acknowledged. So I will let you
know when that arrives. But until then, we will continue to
pursue the questioning here.
Professor Lessig, one of the things I found interesting in
your testimony--you did not mention it, but as written--is this
notion of a citizens convention. Most of the constitutional
amendments that are being proposed talk about actually changing
the Constitution. You have taken it a step beyond that, have
you not, in terms of opening it up to a much different process
to bring in a lot of new voices.
How do you guarantee that a citizens convention is not
overwhelmed by these same oligarchs?
Mr. Lessig. So the process that I have described of the
citizen conventions would be conducted in the way that, for
example, Professor Fishkin of Stanford has conducted, what he
calls ``deliberative polls.'' So in this procedure, we take a
random selection of, let us say, 300 citizens. Imagine we run
four of these conventions around the country, one in each
region, four regions in the country. And these 300 citizens
would act as a jury--as a jury that would listen to the
submissions of people about what these issues are and what the
solutions are and they would deliberate. And they would
deliberate--in my view, they should be sequestered, they should
be compensated, they should be protected so that they can do
their work like any jury can do its work with the confidence
and protection necessary. But in that process, we would involve
a cross-section, a representative random cross-section of the
American public. And my view is this process is necessary
because, as Americans look to this institution and, frankly, to
people like me, law professors or lawyers who talk about this
issue, their eyes glaze over because they cannot believe that
the institution has the capacity to change itself to deal with
what is the core problem.
So that is the way that bringing in another voice into this
process could aid this Congress, I believe, in thinking about
what response might actually earn the trust of the American
people.
Chairman Durbin. Governor Roemer, when you served in the
House of Representatives, I do not know if you raised money in
the same fashion as you did during your Presidential campaign.
But you certainly got to see a contrast to your approach in the
Republican Presidential primary when one Las Vegas casino
magnate, as he is generally referred to, decided to bankroll
one of your opponents, Newt Gingrich, and put $20 or $30
million in and promised more if needed.
Tell me how the dynamics of the campaign were affected by
that decision.
Mr. Roemer. To your first point, when I was a Member of the
House of Representatives, I chose not to accept PAC money. I
think I was the only Member who made that choice. I came from a
State that had a culture, a history of tolerance of political
corruption, if I could say that gently. I love Louisiana. Let
me say that clearly. I ran for Governor in that State as the
only candidate not to take PAC money. I had no chance. I was
sixth in a five-man race. But I won in the end with less money
but making money the issue. So I know this can be done.
When I ran for President this time, after being out of
politics for 20 years--and very happy, Senator, let me just say
the best 20 years of my life. Building community banks is what
I do. No Federal bailout money, just lean and clean and
profitable.
When I ran for President thinking that maybe we could
connect with the American people on the issue of money, I found
a couple interesting dynamics that surprised me. One is the
whole public out there depends on the debates as to their
impressions of people, and every Republican in that race kind
of had their moment in the sun. They would rise and fall with
those debates.
Well, interestingly enough, I was the only candidate
running who had been elected Governor and a Congressman and was
a successful businessman, and I was not invited to a single
debate--not one of the 23 nationally televised debates. And you
have known me for a long time. I love the debates. I mean, that
is where I am alive. And I think I made a mistake, Mr.
Chairman. I gave a speech in Iowa early in February 2011, and
it was Romney, Santorum, and several others were there, Newt
Gingrich. And I got the only standing ovation, and I had talked
about eliminating the ethanol subsidy and the oil subsidy.
I mean, the 1,200 people in that room were like stunned
about the sacrifices that we have to make to get this
government strong again. And I talked about their sacrifice and
mine, and I got a standing ovation. I was not invited to
another debate after that. I just could not raise the money.
So I have found, much to my surprise, after 20 years gone,
that politics had changed. And it is like Larry Lessig, a
friend--I trust Larry completely. It is like Larry Lessig just
said. There are two races that you run: the race for money and
then the race for votes. And what I tried to do running for
President was to run the race for money so that I would be free
after elected to do the right thing. And I would not have to
call Wall Street for bank reform. I would not have to. I would
listen to them, but I would not have to call them. I would not
have to have a fundraiser there. I would not have to go to the
top of the money pile to get my answers. And I found that it
affected everything I do.
I raised about three-quarters of a million dollars, the
average gift $45. I was the only candidate that got Federal
matching funds at the end. I qualified. I had it from all 50
States. I paid my bills, and I returned a substantial amount of
money back to the Federal match. It can be done. But you have
got to get on the debate, and it is all about the money.
Chairman Durbin. Thank you.
Mr. Shapiro, if this were a trial and you were a witness,
the first question I would ask you is the following: Is it true
that you are here representing the Cato Institute, which is, in
fact, financed largely by the Koch brothers, whom you are
defending in terms of their contributions to Super PACs? Should
you have recused yourself under those circumstances?
Mr. Shapiro. No.
Chairman Durbin. Do you want to turn your microphone on,
please?
Mr. Shapiro. The answer to that question as a whole and the
various subparts is no. I am here representing myself. Whenever
we speak as Cato scholars, we use our institutional affiliation
for identification purposes. Some of my colleagues might
disagree with something that I said today. I do not know. And I
guess if they disagree too much, or at least if the management
does, I might get fired. I do not know. But the Koch brothers
have not financed Cato in the last several years. As you may
know, they sued Cato recently. Thankfully, it seems that that
lawsuit is working toward a settlement now. The Kochs
represented less than two percent of Cato's donations in the
last decade.
I have received funding through Koch sources over the
course of my career and when I was a student to attend seminars
and things like this. I do not generally have a problem with
the sorts of things that the Kochs are doing, but I am
certainly not bought or paid for by any more than I am bought
or paid for any other number of Cato donors. We are hired
because we believe in libertarian ideas, and some people want
to fund those ideas, and I am grateful for that, because if
they did not, then I guess I would have to go and be a
litigator again.
So there you go.
Chairman Durbin. Thank you. My time is up.
Senator Whitehouse. And I remind you that at 3:40 we will
take a moment.
Senator Whitehouse. Go ahead.
Chairman Durbin. Senator Coons, would you like to go first?
Senator Coons. I want to thank Senator Durbin for chairing
and convening this hearing, and I would like to particularly
thank Senator Udall for his testimony before and for his
leadership in sponsoring a constitutional amendment, which I
was pleased to join. And I do think this amendment, although it
does not include express limits on campaign spending, makes an
important step forward in restoring the power of this body to
regulate campaign finance as well as the States. So I wanted
to, if I could, address a series of questions to you while
being mindful of the impending moment of silence.
First, if you would, Mr. Shapiro, I was struck at your
passion at advocacy for disclosure, something that was long
shared by a broad range of Members of this body, Republican and
Democrat. How do you account for the complete abandonment of
disclosure as a principle by Members of the other party? We
recently took a floor vote on the DISCLOSE Act, which I thought
would have been an important step forward toward dealing with
some of the challenges of our current campaign financing
system. How do you account for the complete absence of any
support for broader disclosure in the current campaign
financing environment?
Mr. Shapiro. Well, I do not speak for the Republican Party,
of course. I can tell you what I think about the DISCLOSE Act,
which may or may not parallel the thinking of some of your
colleagues on the other side of the aisle, and that is that the
DISCLOSE Act is more about deterring speech than about
disclosure, and it is certainly different from the type of
regime that I would have in mind that I was passionately
advocating, as you say.
I think the George Soroses and Sheldon Adelsons and Kochs
of the world should have to disclose if they are making major
multimillion donations, but under the current regime, you know,
the maximum donation is $2,500. I think that is too low. I do
not think any politician--I think more highly of you, Senator
Coons, than to think that you can be bought by a $2,500
donation, for example. And so I am for certain types of
disclosure, but there are a lot of problems with the DISCLOSE
Act, both in the numbers and exemptions for unions and other
things like that.
So with another type of disclosure regime, I think you
might see other types of votes.
Senator Coons. Professor Lessig, your colleague to your
left there suggested that Citizens United did not really
overturn settled law. Any difference of opinion on that point?
Mr. Lessig. Very strong difference of opinion. In
particular, I guess I take some--well, I would not say
``offense,'' but I want to say it is a little bit harsh to say
that the President, a former constitutional law professor from
your law school, was in error in his characterization of
Citizens United. I do not think he was in error at all. What he
said was that it overturned a century's law, and what he was
referring to was the very clear indication in the Supreme
Court, explicitly articulated by Justice Scalia, that they
would not treat the First Amendment as making any distinction
based on speaker. And the assumption that you could regulate on
the basis of the difference of speaker was fundamental from the
Tillman Act on. So that is why the Tillman Act has a very
specific regulation of corporations, and there was in Taft-
Hartley a different set of regulations around unions than
around corporations. And, quite frankly, that principle the
Supreme Court itself has now abandoned, as Justice Stevens
recently commented in a speech when the Supreme Court upheld
limitations on legal immigrants participating in the political
process while striking down limitations on corporations
participating in the political process.
So, quite frankly, it is the Supreme Court that I would
criticize as confused in this particular area, not the
President.
Senator Coons. Thank you, Professor. If I might, I will
note we have reached the moment.
Chairman Durbin. Excuse me, Professor Lessig and Senator
Coons.
I might note for those who were not aware that, 14 years
ago, Capitol Hill Police Officer Jacob Chestnut and Detective
John Gibson of the U.S. Capitol Police were killed in the line
of duty defending the Capitol, the people who work here, and
its visitors against an armed intruder. And for those who are
physically able, I would ask you to please rise for a moment of
silence.
[Moment of silence.]
Chairman Durbin. Thank you very much.
Senator Coons, please proceed.
Senator Coons. Thank you, Mr. Chairman.
I will, just in closing, remark on our gratitude for the
men and women of the Capitol Police who protect us each and
every day and protect the many folks who work here and the many
citizens who come here to offer their testimony and their
witness.
Professor Lessig, if I might just in closing, you offered a
tantalizing vision of how we might mobilize broadly the
citizens of this country to become, in effect, real Citizens
United to galvanize action by the Senate. If you could just
explain in a little more detail how you think an effective
citizen convention might move us toward effective action in
campaign finance reform.
Mr. Lessig. Well, I think the most difficult problem here
is that this is a difficult problem to solve. Unlike the 17th
Amendment, which when it changed the Senate from being
appointed by State legislatures to be elected by the people,
that solution was a simple one to craft. Everybody understood
how to do it. The words were not in contest.
What we have seen in the range of proposals here is that it
is a really complicated question, and it should be carefully
deliberated upon in a way that could bring people into the
conversation much more effectively than, frankly, any hearing
process could inside of the U.S. Congress.
So my suggestion is if we had a process that was open and
observed by people, where ordinary people participated--and I
have run mock conventions of ordinary people talking about
constitutional matters--I think to the surprise of many people,
you would see that ordinary people deliberating about what the
Constitution needs and how the reforms should go forward would
far surpass 98 percent of what is commonly discussed in this
particular context. And that is because, frankly, politics is
the one sport where the amateur is better for the Nation than
the professional, because the professional is very good at
figuring out what the particular interests that he or she
represents needs, but the amateur can be brought to a point
where he or she thinks about what the Nation needs. And I think
we need at least that part in this process.
So if this Congress convened a series of citizen
conventions that could advise Congress--it would have no legal
authority, of course, but if run in the right way, it could
advise Congress in a way that could make people look at it and
say, OK, if four of these conventions have said the following
amendments make sense and Congress then proposes those
amendments, we have a reason to have some confidence that this
might actually be a way to solve the problem.
Senator Coons. Professor Lessig--I see I am out of time--
that is a very, I think, compelling proposal. It is sort of
harkening to what is at the heart of our jury system, our grand
jury system, and how average citizens are empowered in our
system, or should be, to make fundamental decisions both about
the substance and the process of governing.
Governor Roemer, I just want to say thank you for your very
strong example.
Mr. Roemer. Thanks.
Senator Coons. It is a striking example that you were not
engaged in the debate so that your voice was really not a part
of the Presidential campaign.
Mr. Roemer. Well, as the only non-lawyer around these
parts--you know, and I never admit to going to Harvard
undergraduate and the Harvard Business School when I am in
Louisiana, but I think I am far enough away now to go ahead and
admit that.
[Laughter.]
Mr. Roemer. But as a former Senator would always say when
he fought civil rights legislation, talking about the
distinction that Larry made between the professional
politician--us--and the average citizen, as Russell of Georgia
would say, ``It is not about the poll tax. It is about States'
rights.'' Of course, we knew what it was about. And citizens
meeting to focus on what is needed to make our Constitution
real would be powerful. I think it is a great idea.
Chairman Durbin. Senator Whitehouse.
Senator Whitehouse. Governor Roemer, you will be pleased to
know that States' rights has declined a bit in its stature
around here once it became a potential place for credit card
customers to get out from under the rules that are set in South
Dakota or people were trying to avoid the gay marriage licenses
of other States. I think that was a doctrine of convenience
then, and interesting that you should bring it up.
Professor Lessig, the Supreme Court in Citizens United
said, and I quote: ``Independent expenditures, including those
made by corporations, do not give rise to corruption or the
appearance of corruption.''
What was it doing when it said that? Is that a judicial
determination? Is that a conclusion of law? Is that an act of
taking judicial notice? What were they doing?
Mr. Lessig. I think they were blundering when they said
that.
Senator Whitehouse. We know that, because we know that they
were wrong.
[Laughter.]
Mr. Lessig. And as I have written, I think they were
blundering in a way that harkens back to the mistake of the
Supreme Court in the Lochner era, where in a similar way, the
Court, sitting high above the legislative process, looked down
and reviewed what the legislature had said about whether health
legislation was actually affecting the health of workers, and
said, ``We do not buy it. We do not think it affects the health
of workers. We think it is really about taking money from the
capitalist and giving it to the workers, so we are going to
strike it down.''
A judicial finding of fact based not upon evidence--there
was no submission to suggest this----
Senator Whitehouse. In fact, they went well out of their
way to make sure that there was no record that might give
contrary evidence to the finding of fact that they made.
Mr. Lessig. Absolutely. And, actually, in the Montana case,
the most striking thing, I think, about the Montana case was
the Court's decision to summarily reverse the Montana case when
the Montana Supreme Court's appeal was chock full with all the
arguments necessary to see why this is a kind of corruption,
this current system is a kind of corruption. But the current
Court is dominated by Justices who believe the only corruption
that is relevant is quid pro quo corruption.
Senator Whitehouse. Criminal corruption was your testimony.
Mr. Lessig. That is right. But from the Framers'
perspective, that is outrageous. The Framers of our
Constitution were more concerned with the systemic, what Buddy
called the ``institutional corruption,'' than they were
worrying about whether there would be the Randy Duke
Cunninghams or William Jeffersons inside of Government. They
were worried about setting up a system that would create the
right incentives, the right dependencies. And what we have seen
now is a corruption of that----
Senator Whitehouse. They talked about that in the debates
that led to the Constitution, and they used the very word
``corruption'' in those discussions, and it was sort of the
opposite side of the coin of integrity of government.
Mr. Lessig. Absolutely. That is exactly right.
Senator Whitehouse. Now, you used to clerk for Judge
Posner, did you not?
Mr. Lessig. I did.
Senator Whitehouse. Recently, Judge Posner critiqued the
Citizens United decision. He is a very conservative judge, so
it was interesting coming from him. He said, and I quote, ``Our
political system is pervasively corrupt due to our Supreme
Court taking away campaign contribution restrictions on the
basis of the First Amendment.''
Do you have a sense of what he meant using the phrase
``pervasively corrupt'' ?
Mr. Lessig. I think that he is referring to the kind of
corruption that I am talking about, and in this sense, this is
the way in which--I want to take more distance from Mr.
Shapiro's testimony. When Mr. Shapiro and libertarian
organizations say the solution to this problem is just to
remove all limits so that we do not have any caps on the amount
that people can give directly to campaigns or indirectly to
campaigns, let us just have disclosure but no limits, that does
not in any way respond to the kind of corruption that I am
talking about, because what we have seen--and Montana, again,
submitted evidence about this--is that when you remove limits,
overwhelmingly the pattern is for campaign contributions to go
up dramatically so that we concentrate even more fundraising in
the tiniest slice of the one percent in a world where there is
no limits. So we would go to a world where maybe 1,000 families
would be funding all the campaigns in a world where there are
no limits on campaigns, and that would be more corruption
relative to the current system in the framework that I think
the Framers gave us for thinking about how to keep this
institution non-corrupt.
Senator Whitehouse. And if you go behind the--I agree with
you. It is a judicial finding of fact. You are an expert in
appellate law as well. Let me start with: What is the role of
ab initio judicial findings of fact at the Supreme Court level?
Mr. Lessig. Well, the Supreme Court has learned again and
again the high costs that it suffers when it engages in exactly
that kind of behavior. It is striking that it forgets it again
and again, but it learns it again and again after----
Senator Whitehouse. Because it seemed a little convenient
in this case, but I will----
Mr. Lessig. That is right. And I think that the Court's
opinion, to the extent that it says that the people cannot
perceive this as corruption, just cannot stand, because, of
course, the people are pretty good at perceiving this as
corruption. And there is all the reason in the world for them
to perceive it as corruption, not necessarily the corruption
that says that anybody is being bought--so, again, it is not
the question of whether $2,500 buys a Senator or not--but from
the perspective that what it does is guarantee that you are
constantly focused on what the 0.05 percent of America cares
about so that you can win in the money race so that you have a
shot in the voter election.
Senator Whitehouse. And as a matter of traditional
appellate practice, judicial findings of fact are supposed to
be made at the trial court level or by a jury.
Mr. Lessig. That is true.
Senator Whitehouse. And not by either intermediate or
ultimate appellate courts, correct?
Mr. Lessig. That is right, although in constitutional
context, the Court has a significant role in making what is
thought of as constitutional findings of fact like this. But
what is so striking about----
Senator Whitehouse. This is not constitutional finding of
fact. This has to do with the behavior of human beings in a
political environment.
Mr. Lessig. It does.
Senator Whitehouse. And whether or not somebody will be
corrupted by, say, a secret, multimillion-dollar expenditure
made on their behalf by a special interest. The notion that
that cannot happen seems to me to be absurd.
Mr. Lessig. OK. You can--you should say that. As a law
professor, I should avoid that word because my students will
have less respect for what I say. But it is something that I
think is deeply troubling in that decision. It is one of the
core mistakes of that decision--a decision, though, that--let
me say that the kernel of that decision, the idea that Congress
should not be able to silence or effectively silence anybody,
you could agree with, without agreeing with the implication
that the Court made from that decision, that basically Congress
has no power to intervene to try to limit the corrupting
influence on this democracy.
Senator Whitehouse. And I would conclude by asking you, I
hope, a very short question. What we I think both agree is an
inaccurate finding of fact that they made stood on two
subordinate findings that they also made. One is that--or
presumptions that they made. One is that these expenditures
would, in fact, be independent, and the second is that they
would be disclosed. Are either of those legs borne out by the
facts in Citizens United?
Mr. Lessig. They are certainly not disclosed. The Court was
mistaken in its understanding of the extent of disclosure
obligations. But even if we assume that they are independent in
the sense that nobody is behind the doors agreeing on ways to
coordinate, what we have understood from antitrust law since
the beginning of antitrust law is that there are ways to
coordinate without explicit agreement. And when you are looking
at the same polling data, the Super PAC and the campaign, and
you understand the same data supports the same response, you do
not have to actually pick up the telephone and make any
agreement----
Senator Whitehouse. Well, throw in former staffers, family
members running it, the same consultants on both sides of the
equation, the Super PACs using actual footage from the
candidates' campaigns, and, frankly, I think your competitor,
Mr. Santorum, actually won in Minnesota only through his Super
PAC. So it does not seem to be holding up very well.
I should yield. I have gone over my time.
Mr. Roemer. And the lead benefactor, Senator, was standing
behind Rick when he gave his victory speech in the central part
of America--I think it was Missouri that night--and there was
no coordination. He just was four feet away from him.
[Laughter.]
Senator Whitehouse. Thank you, Governor Roemer. I yield.
Chairman Durbin. Senator Klobuchar.
Senator Klobuchar. Well, thank you very much, Mr. Chairman.
Thank you for holding this hearing. Since we are mentioning the
Midwest, it is a good time for me to talk.
I am someone who is up for office now and have seen
firsthand what is going on here, and I truly believe that
unless we fix this, we are going to literally undermine our
elections and our democracy. And my first question is really
just about how this has rolled out, and I guess for you,
Governor Roemer, having been in the middle of it, I think most
people anticipated that corporations would give a lot of money,
and I think that they are, through 501(c)(4)s, which is really
hard to track down, which is part of the DISCLOSE Act. But I am
not sure anyone anticipated that individuals would give to this
extent, that one billionaire would write a $10 million or a $15
million check, and how the influence that that one person can
wield over an individual, I think, was something that was not
at first anticipated when this came out. And I wondered if you
could comment on that, Governor Roemer?
Mr. Roemer. I think you are absolutely correct, Senator. I
read nor spoke with anyone--I read anything that anybody wrote
or spoke to anyone who a year and a half ago predicted this
onslaught of individual wealth and large checks. But the
pattern has been coming for a number of years, and one of the
interesting things to me, as kind of a populist at heart, you
know, being from that cotton farm in north Louisiana and I
cannot get away from it, the lessons learned, is how distant
the average person has become from the process, which includes
the money. And it is not healthy. And they are angry about it.
If you get the meeting room to express their fear and their
anxiety, it is like it will bring the room to a stop.
So I am here to--I am not a constitutional lawyer. I get my
advice from Larry. I apologize, and I admit that. The first
person I went to see when I decided in December 2010 to run for
President, the first person I went to see the first week in
January 2011 was Larry Lessig. We had never met. We had a
mutual friend, a guy named Mark McKinnon, who is a political
strategist who helped me run my campaign for Governor. And Mark
and I were close, and I gave Mark the speech at my family
meeting--Mark is like part of my family--that I was running for
President, $100 limit, no PACs, no Super PACs, full disclosure,
and let us get it on. I remember the speech. I will not go
through it now.
Senator Klobuchar. Thank you. I only have seven minutes.
Mr. Roemer. I know. Mark says, ``Well, you have got to call
Larry Lessig,'' and he gave me the number. And that is when
Larry and I met, and we have worked together. We do not always
agree but work together. But one of the surprising things to, I
think, both of us is the lack of credibility and feasibility of
a candidacy if you do not embrace the big checks, because you
cannot win. Wow.
Senator Klobuchar. Yes. You know, one of the things that I
think is just so ironic here is anyone that is running, if you
are a candidate, you disclose everything that is over $200, and
it is out there, everyone can see it. And that is one of the
beauties of our laws right now. And you can disagree with
people who are giving, but at least you know who it is. And
this has completely decimated that.
And I also was wondering, Professor Lessig, if you could
talk a little bit about what effect you think this could have
legally on some of the down-ballot races, not just the
congressional races but State and local and what could happen
there. I know in my State we have campaign finance laws that
allow for matching funds, which has evened the playing field
somewhere, where there is public funding for half the money
basically for legislative races, and what you could see
happening here.
Mr. Lessig. Well, it is certainly the case that this
business model of the Super PAC, which because of changes in
the last has become an extremely effective vehicle for large
donors to channel their influence, is spreading not just at the
Federal level but at the State level, even the local level. In
my testimony, I pointed out a Denver school board race which is
in the hundreds of thousands of dollars in contributions and
expenditures for a school board position that was facilitated
by exactly this kind of dynamic.
And so you are going to see this happen across the board
because, as campaign managers begin to think about what is the
most effective device for channeling money into a political
election, these Super PACs will serve it.
There have been three very important counter examples to
this--Arizona, Maine, and Connecticut most recently--which have
tried to facilitate small-dollar-funded elections. I do not
like to call it ``public funding'' because it evokes a
different idea--small-dollar-funded elections where people need
to raise a certain amount of money in small-dollar
contributions and those then get to be matched--this was the
model, of course, the Fair Elections Now Act proposed--has
dramatically changed the way those State legislature elections
work.
In Connecticut, in the very first year of that system, 78
percent of the elected representatives ran with this small-
dollar-funded system on both the Republican and Democratic
sides of the aisle, 78 percent of the elected representatives
used that. So this convinces me that if we just get the numbers
right and have a kind of small-dollar system inside of
Congress, you just change the business model. This is just
incentives. Change the business----
Senator Klobuchar. Especially with the Internet, I mean,
this was the hope, that you are able to reach out, as Governor
Roemer knows, to more people on the Internet. But it completely
gets overwhelmed by these $10, $15 million checks.
My last question would be, obviously--I am a cosponsor of
the DISCLOSE Act. I think it is important to disclose, but we
all know that is not going to fix it. When you talk about your
idea of citizens gathering for these basically constitutional
conventions on the local level, how do you see this working
with actually getting the amendment passed that it appears that
we are going to have to pass to fix this?
Mr. Lessig. I think that these conventions should come up
with their view of what the right answer looks like, and that
should come back to this Congress, and this Congress should be
required to then answer the view of these conventions: Here is
what we think is should be, here is how Congress responds to
that. And then hopefully the process comes to some convergence
on what the right answer looks like, which Congress could then
introduce as an amendment that gets sent down to the States.
This is a short circuit around the way the Framers thought
we would bring the States and the people into this process,
which is a constitutional convention or an Article V convention
that the States call up on. A lot of people have problems with
that. I have more faith in that system than most. But I think
this system would at least bring citizens into the process at a
time when the technology enables people to participate in a way
that would be quite effective, but could product something
valuable and useful for Congress to use in figuring out what
the right answer looks like.
Senator Klobuchar. Thank you very much.
Chairman Durbin. Senator Blumenthal of Connecticut.
Senator Blumenthal. Thank you. Thank you, Senator Durbin.
Thank you for convening this hearing, which I think is
profoundly important for all the reasons that you have stated
very eloquently as members of this panel and also the panel
before. And the Congress has sought to wrestle with these
issues, most recently in the DISCLOSE Act, which I have been
proud to cosponsor. Obviously it would not impose any
restrictions on the size of funding, only require that there be
some greater measure of transparency and literally disclosure,
which seems like a fairly modest and limited, very simple and
straightforward way of remedying some--in a very limited way--
some of the issues that have been raised. And, you know, your
reference to the Connecticut system of public financing--which
has been upheld by the courts--it was challenged while I was
still Attorney General, and it has been upheld now. But I think
that the combination of the 501(c)(4)s and the Super PACs
threatens to make a mockery, literally to make a mockery, of
any similar systems because the amounts of potential so-called
independent financing will overwhelm the amounts available to
candidates, and the test will really be not so much in this
cycle as the next one, when there will be statewide campaigns
for all the statewide offices, and we will see whether, in
fact, these systems can survive that onslaught and deluge of
money anonymously and in magnitudes that have not been seen in
campaigns before.
And so I think that, you know, the first question I would
have, Professor Lessig, is whether, in fact, you can think of
ways to change a Connecticut-type system to constrain or to
overcome that threatened deluge.
Mr. Lessig. Well, I agree with Congresswoman Edwards'
comment earlier that this is a solution that requires--this is
a problem that requires a three-legged solution. So disclosure
is important and critical. That is leg one.
I have been, every chance I can, saying a critical second
leg has got to be the kind of citizen-funded elections that the
Fair Elections Now Act would represent, or we have been talking
about a voucher system. Congressman Sarbanes is considering
introducing legislation that would start a pilot for a voucher
system where individuals would have a democracy voucher that
they could use to contribute.
But a third thing has got to be a response to this
constitutional problem the Supreme Court has created. So I do
not think that there is a way, given the Supreme Court's
authority right now, to use the citizen-funded component to
directly limit the opportunity for independent expenditures But
I do think if there is enough money in the citizen-funded
component, you could overwhelm them.
In the democracy voucher program that I have described, $50
a voter is $7 billion just for congressional elections. That is
three times the total amount raised and spent in 2010. So that
would be real money, and the critical thing is it would be
coming from voters across the income spectrum, it would not be
coming just from the tiniest slice of the one percent, which
would be a significant way to make the funders the same as the
people and so, therefore, eliminate the kind of corruption that
I have been talking about.
Senator Blumenthal. And, you know, the problem is not so
much raising the money that candidates need to qualify for the
public support. It is what happens when the anonymous groups
come forward and raise the ante and thereby overwhelm them. And
what I hear you saying is, given the current constitutional
jurisprudence from this Supreme Court, it would be very
difficult to counter it.
Mr. Lessig. That is right, although there have been
clever--or at least one very clever strategic response. So
Congressman Sarbanes, again, finding himself drawn, because it
is natural and more efficient, to only raise large-dollar
contributions, did what I think has never happened in the
history of the U.S. Congress where he bound himself through a
legal document. He raised three-quarters of a million dollars
and then said that he could not touch the three-quarters of a
million dollars until he raised 1,000 small contributions. And
then on June 30th, he achieved his 1,000 small contributions.
And the reason he did that was that if a Super PAC came in and
attacked him, he would have 1,000 small contributors to turn to
to say, ``We need your help to respond to the Super PAC.''
So that is a dynamic, to use small-dollar contributions,
just many of them, to create a large army of potential
supporters who could respond to that big money. But there is no
way legally to restrict that big money so long as the Supreme
Court's doctrine remains.
Senator Blumenthal. I want to, in the time I have
remaining, turn to a related issue, which is the damage done
not only to democracy by Citizens United and some would say the
only tangentially related social welfare organizations, because
Citizens United itself is not the sole cause of the problems we
face, but also the damage done to the Court itself by these
decisions. And I worry about the credibility and even
legitimacy of the Court. I know you have been a scholar, you
have been a law clerk. I wonder if you could talk a little bit
about that area and about possibly also the related area of a
code of ethics that would be applied to the Supreme Court. We
have talked about it here. Senator Durbin and others have
raised it, and I have as well. So let me ask you that very
general question.
Mr. Lessig. I frankly have been surprised in the last five
to eight years with the carelessness the Court has displayed
about the need to nurture and preserve the public's confidence
in that institution as being above the political fray. I think
there is a willfulness that historically, not just in this
Court but across other courts across the world, has led to the
weakening of that kind of institution within a political
system. So, you know, I think in the recent Obamacare decision,
it was an extraordinary act of political statesmanship, I
think, that the Chief Justice did what the Chief Justice did,
and I think it mirrors what Chief Justice John Marshall did in
the decision of Marbury v. Madison, in a way to decide the
case, actually, I think scholars will say, in a way that really
helped the cause of limiting the scope of the Government's
power, but in a way that did not open up the institution to the
charge that it was just behaving politically, deciding a case
favoring Republicans at a time when Republicans controlled the
Court. And the same thing, of course, has happened the other
way around.
So I am concerned that not all Justices are demonstrating
that kind of, I think, sensitivity and awareness, and I hope
that this decision begins to remind other Justices on the Court
of how important it is not just to decide the cases rightly,
but to decide the cases in a way that continues to earn the
respect and confidence of the American people in that
extraordinarily important institution.
Senator Blumenthal. And speaking extra--when Justices speak
outside the courtroom, outside their opinions, or take
positions or decline to conform to certain rules, all of it can
affect the public perception of the Court.
Mr. Lessig. That is right. And, you know, one of the
great--one of the things I agree with Justice Scalia about is
his desire not to have cameras inside the courtroom, and one of
the reasons I think that is a great thing is that it minimizes
the extent to which people want to play to the public. And I
think they should not want to play to the public. There should
be people who are happy, like Justice Souter was, to be
completely unrecognized and to be able to walk around
Washington without anybody coming up and saying, ``Justice, let
me shake your hand.'' They should be focused on the job of
deciding the cases in a way that is conforming to the law. And
I worry that as they spend their whole lives on these courts
and they live in this city where being well recognized and
popular is so important, that some of that corrupts the way
that institution begins to function as well.
Senator Blumenthal. Well, I thank you and all the members
of this panel very much for your answers and your very helpful
testimony today. I might just respectfully suggest that having
cameras in the courtroom would not necessarily make them
instantly recognizable as they walk around the streets of
Washington, which is a good thing.
Mr. Shapiro. I have no problem with cameras in the
courtroom.
[Laughter.]
Senator Blumenthal. Thank you.
Chairman Durbin. Thanks, Senator Blumenthal. This panel has
been very accommodating, and we will probably have a very brief
second round here, not as long as the first. I thank you for
waiting.
Mr. Shapiro, I am trying to put this in the perspective of
my life as a public official, representing a State of close to
13 million people, about 500 miles long and an hour-and-a-half-
to two-hour plane ride to head back to it, spending three or
four days a week in Washington, going home to try to serve 102
counties in the State, and considering the next political
campaign, which may in a State my size run in the neighborhood
of $20 million. So at the time you would announce for re-
election, you are faced with raising $1 million a month,
basically, to be competitive under the old rules, before the
arrival of the Super PACs.
Most Americans, I think, would be maybe a little
embarrassed but certainly surprised at how much time Members of
Congress spend talking about raising money and actually raising
money. It is an enormous commitment of time--time away from
Washington, time away from your State, time away from your
family, generally spent with very nice people who, by and
large, are not looking for much but generally are in higher-
income categories, trying to raise enough money to be sure that
at the end of the day your message gets out in the campaign.
Now, air-drop in Super PACs, and you do not know what is
going to happen in the closing days. So far a couple of our
colleagues have faced $10 and $12 million of Super PAC negative
advertising unanswered in their election campaigns. That is the
new world that we live in.
And so when you make the suggestion, as you have, that
removing all limitations on the amount of money that can be
donated to a campaign will lead to more people getting involved
in the process and more donations, I have to look at the record
that was presented to the Supreme Court by Montana. The Montana
Supreme Court found that ``the percentage of campaign
contributions from individual voters drops sharply from 48
percent in States with restrictions on corporate spending to 23
percent in States without [restrictions].''
Why? I think because unlimited contributions drive the
fundraising business model away from small contributors to
large contributions. And, second, small donors know their
contributions will have a substantially diminished impact when
there are no limits.
So how do you respond, Mr. Shapiro, to others who say that
the opposite true when the facts say that it does not help to
increase voter participation and voter contributions?
Mr. Shapiro. Mr. Chairman, I sympathize with your plight,
and I offer you a solution. Remove contribution caps, and you
will spend less time fundraising, as will all your colleagues.
Chairman Durbin. If I get to know Sheldon Adelson.
Mr. Shapiro. There are plenty of billionaires on both
sides.
Chairman Durbin. Is that really----
Mr. Shapiro. George Clooney and----
Chairman Durbin. Is that our goal, to find the richest
people in America and cozy up to them to finance our campaigns?
That makes us a better democracy?
Mr. Shapiro. Let voters decide based on knowing who is
contributing. In 1968, the reason Gene McCarthy was able to
stage his challenge to LBJ was because he had three donors who
gave seven figures each. Without that, there would not be
anything like that, or third-party----
Chairman Durbin. I am not going to condone that, but when
we have Sheldon Whitehouse's DISCLOSE bill up so that the
voters can decide based on who gives the money, we cannot get a
single vote--well, I guess we got a few, a handful of votes
from the other side of the aisle, but not enough.
Senator Whitehouse. Not one.
Chairman Durbin. Not one? All right.
Mr. Shapiro. Make the disclosure for really significant
amounts and not small businesses that donate and then have the
IRS sicced on them.
Chairman Durbin. Well, I certainly do not think that is the
case. I think when you look at the statements made by leaders
of the other party, consistently made, that disclosure is the
best disinfectant and so forth, sunlight is the best
disinfectant, clearly we have a very infected model right now
because there is not much sunlight nor much disclosure, and we
cannot get any bipartisan cooperation to move us in that
direction. So if ultimately the decision is to be made by the
voters, should they not at least have the information about who
is playing in this game?
Mr. Shapiro. I agree. That is why I propose raising or
eliminating contribution limits along with setting the proper
disclosure, and you can negotiate what that amount should be.
Senator Whitehouse. What should it be? What should it be?
Mr. Shapiro. That would take a very difficult econometric
analysis to perform. I am a simple constitutional lawyer . . .
but on the order of half a million or something like that. It
is not $10,000, it is not $2,500. It is where the interest in
preventing the appearance of corruption overwhelms the interest
in preventing harassment of various kinds.
Senator Whitehouse. Do you know how much, say, a general
treasurer's race in the State of Rhode Island costs to run?
Mr. Shapiro. I do not.
Senator Whitehouse. But you are willing to say that
$500,000----
Mr. Shapiro. It would depend on the race. I was talking
about a----
Senator Whitehouse. Presidential race?
Mr. Shapiro. No, not a Presidential for that amount. I do
not know. Like I said, I can pick numbers off the top of my
head and I can pick on the fly right now, but----
Senator Whitehouse. A congressional race, most
congressional races come in for well less than $1 million. You
are saying that you should not have to disclose a $499,000
contribution to a Member of Congress?
Mr. Shapiro. I am saying you set the amount for--maybe it
differs on the State, maybe it differs on the race. I have not
come here with a set of--with a roster, with a schedule of what
that would be. It would have to be tailored----
Senator Whitehouse. You have come here with a criticism of
the DISCLOSE Act that it sets the number in the wrong place.
How do you know that it sets it in the wrong place if you do
not know where that place is?
Mr. Shapiro. Just like the Supreme Court often says when it
rules in various directions, we do not know where the line is,
but this is clearly past it----
Senator Whitehouse. And $10,000 is clearly an amount that
would not influence an election?
Mr. Shapiro. Correct. When you are talking--when you are
comparing it to the Sheldon Adelsons and the George Soroses of
the world, or the Koch brothers or whoever else, that is not
a----
Senator Whitehouse. Even a congressional election, because
it applies to congressional races.
Mr. Shapiro. Maybe for city dog catcher. Maybe $10,000
should be disclosable for a city dog catcher. But, again, you
have to balance the interests, and that is--that is not a
bright line you can draw. It is something that you have to
measure and that has to be debated about where that interest in
knowing where that potential appearance of corruption is strong
enough to overwhelm otherwise private individuals' rights to
speak their mind without fearing harassment from their
neighbors.
Senator Whitehouse. Well, we have----
Mr. Shapiro. Let alone from the Government.
Senator Whitehouse. We have had a country where--let me
just tell you that when I went into the DISCLOSE Act vote, as I
came out of the basement lobby, I passed a young man, a marine
from Pennsylvania, who was sitting in the lobby in a wheelchair
with a number of escorts around him to greet the Senators who
were going by. We had asked that young man to go to
Afghanistan, and we had sent him down a road that had an
improvised explosive device under it that blew both of his legs
off. If we can ask that young man to do that, we can darn well
ask the Koch brothers to put up with some impolite blogging.
Mr. Shapiro. I agree. The Koch brothers, yes.
[Applause.]
Mr. Shapiro. And George Clooney and George Soros and
anybody that, as I said, is far above any line that I would
draw.
Senator Whitehouse. One other thing you said earlier, I
want to correct the record here. You said there was--I believe
I wrote it down accurately. You said there was an ``exemption
for unions'' in the bill. I want to make sure that the record
is clear there was no exemption for unions in the bill. Unions,
corporations, 501(c)s, billionaires, everybody is treated
exactly the same in the bill. I know that canard has kind of
crept its way into the public debate, but every time I have
asked a colleague of mine to say where is it, they cannot find
it. And the reason they cannot find it is because in a 19-page-
long bill written in very big letters, it just is not there to
be found. And I want to make sure that that is clear for the
record. We did not put an exemption for unions into the bill.
Every organization is treated absolutely identically.
Chairman Durbin. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman. I just have a
couple of follow-up questions, and I passed the same marine on
my way to vote, and certainly if you compare the sacrifices
that are made by the men and women who are fighting to uphold
democracy and serving and sacrificing for our freedoms, I would
compare them not only to the relatively minor inconvenience of
disclosure, but also to the choice they have as to whether to
contribute in the first place. And part of the reason why we
are such a great democracy is that we do shine that light of
disclosure in a lot of areas, not just in this one but in many
corporate areas as well. When a company is a public company and
making these contributions to a public process and a public
institution I think well merits this kind of disclosure.
But the question that I have for all the members of the
panel is: Put aside the laws that have been proposed to improve
the system. I am not satisfied that existing laws are being
enforced sufficiently, aggressively, and faithfully, whether
the provisions of the Tax Code, for example, or the current
provisions that draw distinctions between political activities
and non-political activities are being sufficiently well
enforced. What is your view on that, Mr. Shapiro?
Mr. Shapiro. I have not studied the enforcement mechanisms.
If they are not being enforced, they should be. I am all for
the rule of law.
I will say that you cannot just brush aside the threat of
harassment and vigilante action and the Government going after
people who have disclosed. Frank VanderSloot, for example, an
Ohio businessman, was disclosed as having contributed against
President Obama, and all of a sudden has a raft of regulatory
agencies going after him, even though he has never had any
trouble, never committed a business crime. And that is not the
only example of that. Whether you are talking about the $100
donor to a campaign for Prop. 8 in California--I happen to be
against Prop. 8, but I do not think that someone who donates
$100 should lose their job for it.
Again, there are competing interests but we should be for
maximizing speech rather than having government control. And do
not mistake this. What all of these programs are saying is that
the government should control independent political speech and
people getting together at some point is too much speech.
Senator Blumenthal. But disclosure is not control, is it?
Mr. Shapiro. Disclosure is not control. That is a different
problem. You are right.
Senator Blumenthal. So if you cannot draw the line at a
particular amount, why not just require disclosure of
everything?
Mr. Shapiro. Because there is no right, absolute right, to
know what all your neighbors are donating. It is a prudential
concern rather than a constitutional one at that point. It is
possible to draw a line. I am just saying I have not analyzed
all of the different possible races and seen where that line
should be drawn. But, you know, after a study of this--and that
can be negotiated and should be negotiated politically--that
line should be drawn where indeed it only is the big boys that
are putting their reputation on the line rather than people
donating $100 or $2,500.
Senator Blumenthal. Thank you.
Chairman Durbin. Thank you very much, Senator Blumenthal.
I thank the witnesses on this panel. For the record, the
way the witness panels are constructed, there are witnesses
that are suggested by the majority side and by the minority
side, and so there is some balance in the testimony here. Mr.
Shapiro, thank you for being here at the invitation of Senator
Graham. I thank Professor Lessig and Governor Roemer for being
here to give us their input on this important topic.
I want to note that there are over 400 people who have been
attending this hearing, both in this room and in the overflow
room, as an indication of the level of interest.
There is also another indication. We have had a number of
organizations and individuals submitting statements for the
record, including Americans for Campaign Reform, Common Cause,
Demos, Free Speech for People, Move to Amend, People for the
American Way, Public Campaign, Public Citizen, Ben & Jerry's,
American Sustainable Business Council, Center for Media and
Democracy, Washington Public Campaigns, Professor Jamie Raskin,
Professor Sierra Torres Bellisi, former North Carolina State
Representative Chris Haggerty, and Attorney Rick Hubbard of
South Burlington, Vermont. Without objection, I will add their
statements to the record, thanking the individuals and
organizations for their important work.
[The information appears as a submission for the record.]
Chairman Durbin. There may be some follow-up questions to
the witnesses--it happens--and I hope if you receive them that
you can, even on vacation, respond in a timely fashion. I want
to especially thank your son for being a dutiful observer of
this constitutional process. And if there are no further
comments from my panel or colleagues, I thank all the witnesses
for participating and everyone in attendance on this important
issue.
This hearing stands adjourned.
[Whereupon, at 4:30 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
A P P E N D I X
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Witness List
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Submissions for the Record Not Printed Due to Voluminous Nature,
Previously Printed by an Agency of the Federal Government, or Other
Criteria Determined by the Committee, List of Material and Links Can Be
Found Below:
Torres-Spelliscy, Ciara, Assistant Professor of Law,
Stetson Law, Tampa, Florida, Part 1, see link: http://
papers.ssrn.com/sol3/papers.cfm?abstract--id=2046832py.pdf