[Senate Hearing 112-863]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 112-863

                             OF SUPER PACS



                               before the

                     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

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
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director


                    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
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




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


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


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

                             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.

                   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.
    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 
    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 
    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.

                   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 
    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.


    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 
    Senator Sanders, please proceed.


    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 
    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 
    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 

                  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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Governor Roemer, thank you for joining us today. The floor 
is yours.

                        ROUGE, LOUISIANA

    Mr. Roemer. Thank you, Mr. Chairman. Thanks for inviting 
    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 
    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.


    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 
    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 
    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 
    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.
    Chairman Durbin. Professor Lessig, the floor is yours.


    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 
    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 
    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 
    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 
    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, 
    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 
    Senator Coons. Thank you, Professor. If I might, I will 
note we have reached the moment.
    Chairman Durbin. Excuse me, Professor Lessig and Senator 
    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 
    [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 
    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.
    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 
    Senator Whitehouse. We know that, because we know that they 
were wrong.
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    Mr. Shapiro. And George Clooney and George Soros and 
anybody that, as I said, is far above any line that I would 
    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 
    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 
    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

              Additional Material Submitted for the Record

                              Witness List


  Prepared Statements of Hon. Richard J. Durbin and Hon. Patrick Leahy







                    Prepared Statements of Witnesses


































































                Miscellaneous Submissions for the Record































































































































   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://