[Senate Hearing 113-889]
[From the U.S. Government Publishing Office]
S. Hrg. 113-889
EXAMINING A CONSTITUTIONAL
AMENDMENT TO RESTORE DEMOCRACY
TO THE AMERICAN PEOPLE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 3, 2014
__________
Serial No. J-113-62
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
28-401 PDF WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Kristine Lucius, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
JUNE 3, 2014, 10:32 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement........................................... 85
Cruz, Hon. Ted, a U.S. Senator from the State of Texas........... 13
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 11
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 81
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island,
prepared statement........................................... 83
WITNESSES
Witness List..................................................... 51
Abrams, Floyd, Partner, Cahill Gordon & Reindel LLP, New York,
New York....................................................... 17
prepared statement........................................... 60
McConnell, Hon. Mitch, Minority Leader, a U.S. Senator from the
State of Kentucky.............................................. 9
prepared statement........................................... 54
McKissick, Hon. Floyd B., Jr., State Senator, North Carolina
General Assembly, Raleigh, North Carolina...................... 15
prepared statement........................................... 56
Raskin, Jamin B. ``Jamie'', Professor of Law and Director,
Program on Law and Government, American University Washington
College of Law, Washington, DC................................. 18
prepared statement........................................... 73
Reid, Hon. Harry, Majority Leader, a U.S. Senator from the State
of Nevada...................................................... 6
prepared statement........................................... 52
QUESTIONS
Questions submitted to Floyd Abrams by Senator Grassley.......... 92
Questions submitted to Floyd Abrams by Senator Lee............... 97
Questions submitted to Hon. Floyd B. McKissick, Jr., by Senator
Grassley....................................................... 95
Questions submitted to Prof. Jamin B. Raskin by Senator Durbin... 91
Questions submitted to Prof. Jamin B. Raskin by Senator Grassley. 96
ANSWERS
Responses of Floyd Abrams to questions submitted by Senator
Grassley....................................................... 99
Responses of Floyd Abrams to questions submitted by Senator Lee.. 110
[Note: At the time of printing, after several attempts to obtain
responses to the written questions, the Committee had not
received responses from Hon. Floyd B. McKissick, Jr.]
Responses of Prof. Jamin B. Raskin to questions submitted by
Senator Durbin................................................. 113
Responses of Prof. Jamin B. Raskin to questions submitted by
Senator Grassley............................................... 129
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Charlotte Observer, The, ``Another window to corruption; Our
View,'' April 2, 2014, editorial............................... 138
Kromm, Chris, Executive Director, Institute for Southern Studies,
Durham, North Carolina, statement.............................. 154
Liptak, Adam, ``Corporations Find a Friend in the Supreme
Court,'' The New York Times, May 4, 2013, article.............. 140
Sanders, Hon. Bernard, a U.S. Senator from the State of Vermont,
and Hon. Theodore E. Deutch, a Representative in Congress from
the State of Florida, statement................................ 160
Udall, Hon. Tom, a U.S. Senator from the State of New Mexico,
statement...................................................... 148
EXAMINING A CONSTITUTIONAL
AMENDMENT TO RESTORE DEMOCRACY
TO THE AMERICAN PEOPLE
----------
TUESDAY, JUNE 3, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:32 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Schumer, Durbin,
Whitehouse, Klobuchar, Franken, Coons, Blumenthal, Hirono,
Grassley, Hatch, Sessions, Cornyn, Cruz, and Flake.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. I just thought, before I start, I think--
and I am joined in this by Senator Grassley--that today's
hearing deals with a serious issue, and I am delighted to see
so many members of the public who are interested and are here.
Also, of course, as is the practice that I began with the
Judiciary Committee, we stream these hearings live. But I
expect all members of the public understand this is a serious
matter and will act accordingly.
The rules of the Senate prohibit outbursts, clapping,
demonstrations of any kind, including both for or against
positions I might take or any other Senator might take or
Members might take, including the Democratic Leader and
Republican Leader.
Also, you are prohibited from blocking the view of people
around you, which means if you hold up signs that block
people's views, I will have to ask the Capitol Police to remove
you--again, whether those signs are favorable to our position
or not. A lot of people have stood in line a long time.
Everybody deserves the courtesy of being able to watch. I
understand--and there will be plenty of room outside for people
to demonstrate, hold up their signs, and hope they will get in
the press, either for or against, or to do whatever they want
to get press, and I do not want to stop them from doing that.
But there will be the press corps outside, and the most--I
might say I find those who can be the most imaginative in
stating their position, whether they are in the minority or
majority, usually end up getting in the paper, and God bless
them.
This morning the Senate Judiciary Committee begins its
consideration of a constitutional amendment to repair the
damage done by a series of flawed Supreme Court decisions that
overturned longstanding precedents of the Court and eviscerated
campaign finance laws. I believe that, left unanswered, these
rulings will continue to erode fundamental aspects of our
democratic process. Therefore, the Congress and the American
people have to act.
Years ago, Congress passed campaign finance laws to
preserve the integrity of the electoral process, to prevent and
deter corruption, and to limit the undue influence of the
wealthy and special interests in our election, rules that each
of us have had to follow, and these were passed by large
majorities, Republican and Democratic, in the Senate and House.
But five Justices have now repeatedly overturned these common-
sense and time-honored protections--through the Citizens United
and McCutcheon cases. In doing so, the Supreme Court has opened
the floodgates to billionaires who are pouring vast amounts of
unfettered and undisclosed dollars into political campaigns
across the country. Justice John Paul Stevens had it right when
he wrote that the Court's decision in Citizens United
``threatens to undermine the integrity of elected institutions
across the Nation.''
I have heard from countless Vermonters about how the
Supreme Court's decisions threaten the constitutional rights of
hardworking Americans who want to have their voices heard, not
drowned in a sea of corporate special interests and a flood of
campaign ads on television. They also would like to know who is
actually behind ads for or against a particular person.
The American people continue to voice their support through
other avenues. More than 2 million individuals signed petitions
calling for a constitutional amendment to fight back against
the corrosive effects of the Supreme Court's decisions
regarding money in politics. Those petitions have been brought,
I believe, to our hearing room today, and they are in those
boxes in the back, those large white boxes. They are a tangible
reminder that Americans are calling on Congress to act.
You know, the ability of all Americans--not just wealthy
ones--to express their views and have their voices heard in the
political process is vital to self-government. The common sense
of the American people tells us that corporations are not
people. The Supreme Court says corporations are people, but
while we would like a General Eisenhower President, we are
probably not going to like a General Electric President. Those
who claim to adhere to the original intent of the Constitution
cannot reasonably argue that the Framers viewed the rights of
corporations as central to our electoral process.
I have served in the Senate for nearly 40 years, as
Chairman of the Judiciary Committee for nearly 10 years. I have
long been wary of attempts to change the Constitution because I
have seen so many hundreds of proposals that I have opposed
used like bumper stickers merely to score political points. Our
fundamental charter is sacred, and amending it should only be
done as a last resort. But like most Vermonters, I strongly
believe that we must address the divisive and corrosive
decisions by the Supreme Court that have dismantled nearly
every reasonable protection against corruption in our political
process.
We have tried for years to pass a law to require
transparency and disclosure of political spending to let people
know where the money is coming from and from whom and which
special interests it might be. Unfortunately, Senate
Republicans have repeatedly filibustered that legislation,
known as the DISCLOSE Act. It would have at least allowed
people to know who is pouring the money into our electoral
process. So I hope that we will be able to convince enough of
my friends on the other side of the aisle to overcome the
filibuster of this transparency matter. But because the Supreme
Court based its rulings on a flawed interpretation of the First
Amendment, a statutory fix alone will not suffice.
I am going to turn first, of course, to Senator Grassley.
Then we want to hear from both Senator Reid and Senator
McConnell. And I want to thank my friends Harry Reid and Mitch
McConnell for being here. I think their joint appearance is a
first in this Committee's history, as near as we can tell. I
can only speak for 40 years of the Committee's history, but it
underscores the importance of the public discussion we are
having today. While we may disagree on some issues, both of the
Senators are good friends of mine, and I am glad to have them
here.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Mr. Chairman, our Leaders, and my
colleagues on this Committee, I cannot think of a more
important hearing than our Committee could hold. After all,
what is more important than protecting our Bill of Rights?
However, this hearing also shows as clearly as possible the
differences between conservatism and progressivism today. So
let us start with First Principles. The Declaration of
Independence states that everyone is endowed by their Creator
with certain unalienable rights that governments are created to
protect. Those preexisting rights include the right to liberty.
The Constitution was adopted to secure the blessings of liberty
to all Americans. In the period of time 1787 to 1789, Americans
rejected the view that the structural limits on government
power contained in the original Constitution would adequately
protect the liberties that they had fought a revolution to
preserve. So they insisted at that time on the adoption of a
Bill of Rights. The Bill of Rights protects individual rights
regardless of whether the Government or a majority approves of
their use. The First Amendment in the Bill of Rights protects
the freedom of speech. That freedom is basic to self-
government. Other parts of the Constitution foster equality or
justice or representative government. But the Bill of Rights is
only about one thing--individual freedom.
Free speech creates a marketplace of ideas in which
citizens can learn, debate, and persuade fellow citizens on the
issues of the day. At its core it enables the citizenry to be
educated to cast votes to elect their leaders. Today freedom of
speech is threatened as it has not been in many decades. Too
many people are impatient and will not listen and debate and
persuade. Instead, they want to punish, intimidate, and silence
those with whom they disagree. A corporate executive who
opposed same-sex marriage--the same position that President
Obama held at that time--is to be fired. Universities that are
supposed to be fostering academic freedom cancel graduation
speeches by speakers that some students find offensive.
Government officials order other Government officials not to
deviate from the party line concerning proposed legislation.
Now, today, S.J. Res. 19, cut from the same cloth, would amend
the Constitution for the first time to diminish an important
right that Americans have that is contained in the Bill of
Rights. In fact, it would cut back on the most important of
these rights: core free speech about who should be elected to
govern ourselves. The proposed constitutional amendment would
enable Government to limit funds contributed to candidates and
funds spent by or in support of candidates. That would give the
Government the ability to limit speech. The amendment would
even allow the Government to set the limit at zero. There could
be no contributions. There could be no election spending. There
could be no public debate on who should be elected. As you can
conclude, incumbents like us here at the table would find that
outcome to be very acceptable. They would know that no
challenger could run an effective campaign against them.
Rationing of speech at low limits would produce similar
results.
What precedent would this amendment create?
Suppose Congress passed limits on what people could spend
on abortions or what doctors or hospitals could spend to
perform them? What if Congress limited the amount of money
people could spend on guns? Or to limit how much people could
spend of their own money on their own health care? Should
Congress limit how much people can give to charities or how
much a charity can spend? Under this amendment, Congress could
do what the Citizens United decision rightfully said it could
not. For instance, it could not make it a criminal offense for
the Sierra Club to run an ad urging the public to defeat a
Congressman who favors logging in the national forests. It
could not stop the National Rifle Association--or it could stop
the National Rifle Association from publishing a book seeking
public support for a challenger to a Senator who favors a
handgun ban; or for the ACLU to post on its website a plea for
voters to support a Presidential candidate because of his
stance on free speech. That should be a frightening prospect to
all of us.
Under this amendment, Congress and the States could limit
campaign contributions and expenditures without limit and
without complying with existing constitutional provisions.
Congress could pass a law limiting expenditures by Democrats
but not by Republicans, by opponents of Obamacare but not by
supporters.
And what does the amendment mean when it says that Congress
can limit funds spent in opposition to candidates? If an
elected official says he or she plans to run again, long before
any election, Congress under this amendment could criminalize
any criticism of that official as spending in opposition to a
candidate. A Senator on the Senate floor, appearing on C-SPAN
free of charge, could with immunity defame a private citizen.
The Member could say that the citizen was buying elections. If
the citizen spent any money to rebut the charge, he could end
up being charged. We would be back then to the days when
criticism of elected officials was a criminal offense, and you
remember the history of the Alien and Sedition Acts. And yet
its supporters say this amendment is necessary for democracy.
It is outrageous to say that limiting speech is necessary for
democracy.
The only existing right that the amendment says it will not
harm is freedom of the press. So Congress and the states could
limit the speech of anyone except those corporations that
control the media. That would produce an Orwellian world in
which every speaker is equal but some speakers are more equal
than others. Freedom of the press has never been understood to
give the media special constitutional rights denied to others.
After years of denying it, supporters of political spending
limits now admit that enacting their agenda of restricting
speech may require an amendment to our fundamental charter of
liberty. But in light of recent Supreme Court decisions, an
amendment soon may not be needed at all. You know, there are
four Justices right now who would allow core political speech
to be restricted. Were a fifth Justice with this view to be
appointed, there would be no need to amend the Constitution to
cut back on freedom.
Justice Breyer's dissent for these four Justices in the
McCutcheon decision does not view freedom of speech as an end
in itself. Of course, our Founding Fathers did view that as an
end in itself. Just Breyer thinks free political speech is
about ``the public's interest in preserving a democratic order
in which collective speech matters.''
To be sure, individual rights often advance socially
desirable goals. But our constitutional rights do not depend on
whether unelected judges believe they advance democracy as they
conceive it. Our constitutional rights are individual. They are
not collective. Never in 225 years has any Supreme Court
opinion described our rights as ``collective.'' So as the
Declaration of Independence states, our rights, they come from
God and not from the Government or the public.
Consider the history of the last 100 years. Freedom has
flourished where rights belonged to individuals that
governments were bound to respect; where rights were collective
and existed only at the whim of a government that determines
when they serve socially desirable purposes, the results have
been literally horrific.
So we should not move even one inch in the direction of
liberal Justices and where this amendment would take us. The
stakes could not be higher for all Americans who value their
rights and freedoms. Speech concerning who the people's elected
representatives should be, speech setting the agenda for public
discourse, speech designed to open and change the minds of our
fellow citizens, speech criticizing politicians, and speech
challenging government policies are all in this Nation's vital
rights. This amendment puts all of them in jeopardy upon
penalty of prosecution. It would make America no longer
America. And so I intend to do what I can to stop it and urge
others to do the same.
Thank you.
Chairman Leahy. Thank you, Senator Grassley. I appreciate
what you said about the Supreme Court. Who knows? Someday we
will have Supreme Court Justices who will actually follow the
precedents that they swore under oath during their confirmation
hearing they would follow.
But what I want to do is hear from Senator Reid and Senator
McConnell, and then, because they are the Chair and Ranking
Member of the Subcommittee that will be handling this, very
brief remarks from Senator Durbin and Senator Cruz.
Senator Reid.
STATEMENT OF HON. HARRY REID, MAJORITY LEADER,
A U.S. SENATOR FROM THE STATE OF NEVADA
Senator Reid. Mr. Chairman, thank you very much for
convening this hearing. I know you remind me all the time about
all the work that is done out of this Committee. Having served
in State legislature in a Judiciary Committee, I understand
much of the work is funneled through this Committee, either on
a State level or Federal level.
Senator Grassley, thank you also for your statement.
I am very impressed with the attendance here today. It is
really heart-warming to see everyone caring so much about this
issue.
Mr. Chairman, Members of the Committee, I am here because
the flood of dark money into our Nation's political system
poses the greatest threat to our democracy that I have
witnessed during my tenure in public service. The decisions by
the Supreme Court have left the American people with a status
quo in which one side's billionaires are pitted against the
other side's billionaires.
So we sit here today with a simple choice: We can keep the
status quo and argue all day and all night, weekends, forever,
about whose billionaires are right and whose billionaires are
wrong; or we can work together to change the system, to get
this shady money out of our democracy and restore the basic
principle of one American, one vote.
Mr. Chairman, just a little bit of history from my
perspective. I ran for the Senate in 1974, and I had to be
educated about the Federal laws, because in Nevada we had an
entirely different system. Cash was available to politicians.
In the Federal system, that is not the case, and that was
not the case. One of Paul Laxalt's very close advisers, a man
by the name of Wayne Pearson, who was supporting me, said,
``Under the Federal rules, be very careful. You cannot take any
cash from anybody. The rules are very strict. Whoever gives you
money, there is a limit to how much they can give. You give
their address, their occupation, and be very careful any money
you take. There is a new system.''
Well, Mr. Chairman, I have been asking Nevadans to vote for
me for decades, and I have seen firsthand how this dark money
is perverting our political system. Way back then, 40 years
ago, it was pretty easy to follow the rules. But I have seen it
change.
In 1998, I had a very close election with John Ensign. We
each spent about $10 million. And we were allowed to do that
because the Supreme Court again created an opening that said
you could divert money into the State party. And that money
could be corporate money or it could be any kind of money. It
could be used for denigrating the other person or building the
person up. It was a bad situation. I felt so unclean, for lack
of a better word. A person could give lots of money. One person
gave a quarter of a million dollars to the State party. Of
course, he wanted me to know that he had done it.
Now, Mr. Chairman, I know that did not corrupt me. But it
was corrupting. And after 1998, two good Senators got together
and worked very hard to change the system. We passed the
McCain-Feingold law that took corporate money out of politics.
So when I ran in 2004, it was like I had taken a bath and I
felt so clean. Everyone who was involved in a Federal election
had to list where they got their money. There was a limit of
how much you could ask and get from someone else. You listed
their occupation and, you know, so on. That was wonderful.
And then comes 2010, and we went back into the sewer with
Citizens United. In January, the Supreme Court had ruled that
no holds barred, any money could come from any source, with
rare, rare exception. And that race was, as far as I was
concerned, not a lot of fun.
The race in 2010 made 1998 seem like a picnic in the park,
money coming from every place, without a suggestion as to where
the money came from. Citizens for Good Government, good guys,
sponsored this one.
In 2010, in that race in Nevada, probably $120 million was
spent in that race. Can you imagine that? No one knew where the
money came from, and the people in Nevada were subjected to
false and misleading ads, not knowing anything about these
shadow groups. That was 2010.
The Citizens United case and the other decisions the
Supreme Court has made only made it worse. During the 2012
Presidential campaign, outside groups spent more than $1
billion. That is a conservative estimate. That is about as much
money as was spent in the previous 12 elections. But this spike
in the amount of shadowy money being pumped into elections is
not surprising. Recent decisions rendered by the U.S. Supreme
Court--I have mentioned Citizens United and McCutcheon--have
eviscerated our campaign finance laws and opened the floodgates
for special interests.
The cynics may scoff at the idea of us working together on
an issue as critical as good government, but it was not all
that long ago that the issue of campaign finance reform enjoyed
support from both Democrats and Republicans. Campaign finance
reform has been proposed a number of times before--even by my
friend, the Republican Leader, Senator McConnell.
Senator McConnell's own constitutional amendment empowered
Congress to enact laws regulating the amount of independent
expenditures by any person which, quote, from his legislation,
``can be made to expressly advocate the election or defeat of a
clearly identified candidate for Federal office.'' In
advocating for this reform, Senator McConnell said, ``We
Republicans have put together a responsible and constitutional
campaign reform agenda. It would restrict the power of special
interest PACs, stop the flow of all soft money, keep wealthy
individuals from buying public office.''
There is a lot more that he said, but that gives you the
general idea that at one time Senator McConnell agreed without
question with me and most of the people behind me. Senator
McConnell had the right idea then. And I am hopeful that we can
rekindle a way to bring forth those noble principles again.
I find it hard to fathom why my Republican colleagues would
want to defend the status quo. Is there any Member of this
Committee who really believed the status quo is good?
Although he opposed billionaires using their own money to
run for office, Senator McConnell now supports billionaires'
ability to fund today's campaigns and independent expenditures.
In fact, he even declares today, ``In our society, spending is
speech.'' How could everyday, working American families afford
to make their voices heard if money equals free speech?
American families cannot compete with billionaires if free
speech is based on how much money you have.
My Republican colleagues attempt to cloak their defense of
the status quo in terms of noble principles. They defend the
money pumped into our system by the Koch brothers as ``free
speech.'' Mr. Chairman, I defy anyone to determine what the
Koch brothers are spending money on today politically. They
have all these phantom organizations. They have one on
veterans. They have another one on senior citizens. They must
have 15 different phony organizations that they use to pump
money into the system, to hide who they really are. These two
wealthy men are only interested in their bottom line.
Our involvement in Government should not be dependent on
our bank account balances. The American people reject the
notion that money gives the Koch brothers, corporations, or
special interest groups a greater voice in Government than a
mechanic, a lawyer, a doctor, a healthcare worker. They
believe, as I do, that elections in our country should be
decided by voters--those Americans who have a constitutional
and fundamental right to elect their representatives. The
Constitution that everybody loves to talk about does not give
corporations a vote, and it does not give dollar bills a vote.
The ``undue influence'' that my friend decried three
decades ago has not magically transformed into free speech.
David Copperfield in Las Vegas, the great illusionist, could
not come up with that one. It is still bad for America. It is
bad for the body politic. We must undo the damage done by the
Supreme Court's recent campaign finance decisions. And we need
to do it now.
I support this constitutional amendment. I admire and I
congratulate Senator Tom Udall and Senator Michael Bennet for
their authoring this amendment, which grants Congress the
authority to regulate and limit the raising and spending of
money for Federal political campaigns. Senators Udall and
Bennet's amendment will rein in the massive spending of super
PACs, these secret organizations, which has grown so, so much
since that January 2010 decision of Citizens United.
The constitutional amendment also gives the States the
authority to institute campaign spending limits at the State
level.
Simply put, a constitutional amendment is what the Nation
needs to bring sanity back to political campaigns and restore
Americans' confidence in their elected leaders. The American
people want change. They want their voice in Government to be
protected. Free speech should not cost the American people a
penny, a dime, certainly not a dollar.
So, Mr. Chairman, Members of the Committee, I am happy, if
you have questions that you want to ask me, to wait. I am happy
to do that. Otherwise, I would ask your leave, and I will leave
because I have places to go.
[The prepared statement of Senator Reid appears as a
submission for the record.]
Chairman Leahy. Thank you. I know both you and Senator
McConnell have a great deal of things, and following the
tradition of the Committee, we will let you both speak and
leave. We will have enough time for questions on the floor. So
I thank you very much, Senator Reid.
Senator Reid. And, Mr. President, I want to make sure that
my leaving does not take away at all from my friendship with
Mitch McConnell. We have heard each talk and criticized each
other for years, so he will not be upset that I am leaving.
Senator McConnell. No. No problem.
[Laughter.]
Chairman Leahy. Well, as I noted--and I appreciate the
sobriquet of ``Mr. President.'' I assume you are referring to
my role as President Pro Tem and dean of the Senate. But
``Chairman'' is fine.
And I would also note, as I have said before, both Senator
Grassley and I are friends of both Senator McConnell and
Senator Reid and have been for years. I keep my baseball bat in
my office that----
Senator McConnell. You never know when you might need it.
Chairman Leahy. No, I have it from my visit with you in
Kentucky. Please go ahead, Senator McConnell.
STATEMENT OF HON. MITCH McCONNELL, MINORITY LEADER, A U.S.
SENATOR FROM THE STATE OF KENTUCKY
Senator McConnell. Thank you, Mr. Chairman. Given how
incredibly bad this proposed amendment is, I cannot blame my
friend, the Majority Leader, for wanting to talk about things
like the Koch brothers or what I may have said over a quarter
of a century ago. I am going to confine my remarks to what is
before us, and I want to start by thanking Senator Grassley for
an absolutely outstanding observation about what the First
Amendment was supposed to be about. And at the very core of it,
of course, was political speech.
Americans from all walks of life understand how
extraordinarily special the First Amendment is. Like the
Founders, they know that the free exchange of ideas and the
ability to criticize their Government are necessary for our
democracy to survive.
Benjamin Franklin noted that ``whoever would overthrow the
liberty of a nation must begin by subduing,'' as he put it,
``the freeness of speech.'' The First Amendment is the
constitutional guarantee of that freedom, and it has never,
never been amended. Ever.
Attempts to weaken the First Amendment--such as the
proposal before this Committee--should, therefore, pass the
highest scrutiny. Senate Joint Resolution 19 falls far, far
short of that high bar.
It would empower incumbent politicians in Congress and in
the States to write the rules on who gets to speak and who does
not. And the American people should be concerned--and many are
already--that those in power would use this extraordinary
authority to suppress speech that is critical of them, as
Senator Grassley pointed out.
Now, I understand that no politician likes to be
criticized. And some of us are criticized more often than the
rest of us. But the recourse to being criticized is not to shut
up your fellow citizens, which, believe me, this is designed to
do, to give us the power to pick winners and losers in the
political discussion in this country. That is what this
amendment is all about. It is to defend your--the solution to
this is to defend your ideas, to defend your ideas more ably in
the political marketplace, to paraphrase Justice Holmes, or
simply to come up with better ideas.
The First Amendment is purposefully neutral when it comes
to speech. It respects the right of every person to be heard
without fear or favor, whether or not their views happen to be
popular with the Government at any given moment.
The First Amendment is also unequivocal. It provides that
``Congress shall make no law''--``Congress shall make no law .
. . abridging the freedom of speech.'' The First Amendment is
about empowering the people, not the Government. The proposed
amendment has it exactly backward. It says that Congress and
the States can pass whatever law they want abridging political
speech--the speech that is at the very core of the First
Amendment.
If incumbent politicians were in charge of political
speech, a majority could design the rules to benefit itself and
diminish its opponents. And when roles reversed, you could
expect a new majority would try to disadvantage the other half
of the country. And on and on it would go.
You can see why this is terrible policy. You can also see
how this is at odds with the First Amendment.
That is why the last time a proposal like this was
considered, in 2001--2001, we had a vote on this--it was
defeated on a bipartisan basis. Now, I get the impression all
the Democrats now have walked away from the First Amendment.
But back then, Senator Kennedy and Senator Feingold and several
other Democratic colleagues voted against it. A similar
proposal was likewise defeated in 1997.
Our colleagues who voted against those proposals were
right. And I respectfully submit that they would be wrong now
to support the latest proposal to weaken the First Amendment.
This is especially clear when one compares the language of the
amendments.
Senate Joint Resolution 4 back in the 107th Congress would
have empowered the Government to set ``reasonable limits''--
whatever that is--on political speech. The same was true of
Senate Joint Resolution 18 in the 105th Congress. As bad as
those proposals were--and they were awful--they at least
limited the Government's power to setting ``reasonable limits''
on speech--again, whatever that is.
By contrast, the amendment we are discussing today would
drop that pretense altogether. It would give the Government
complete control--complete control--over the political speech
of its citizens, allowing it to set unreasonable limits on
their political speech, including banning it outright,
reminiscent of the Alien and Sedition Acts, as Senator Grassley
pointed out.
Not only would S.J. Res. 19 allow the Government to favor
certain speakers over others, it would guarantee such
preferential treatment. It contains a provision, not found in
prior proposals, which expressly provides that Congress cannot
``abridge the freedom of the press.'' This is really great if
you are a corporation that owns a newspaper. This is terrific
news for you. You get your speech, but nobody else does. The
media wins and everybody else loses.
Now, everyone on this Committee knows this proposal is
never going to pass Congress. This is a political exercise, and
that is all it is.
The goal here is to stir up one party's political base so
they will show up in November, and it is to do it by
complaining loudly about certain Americans exercising their
free speech and associational rights, while being perfectly
happy that other Americans--those who agree with the sponsors
of this amendment--are doing the same thing.
But the political nature of this exercise should not
obscure how shockingly bad this proposal is. This is
embarrassingly bad to be advocating for the first time in our
history that we amend the First Amendment to restrict the
rights of citizens to speak.
When it comes to free speech, we should not substitute the
incumbent-protection desires of politicians for the protection
the Constitution guarantees to all Americans.
I can remember a time when, on a bipartisan basis, we all
agreed to that, or at least most of us did. It is too bad we
cannot agree on it now.
So I would urge the Committee to reject this dangerous
proposal to dramatically weaken one of our most precious
freedoms.
Mr. Chairman, I appreciate the opportunity to be here and
would love to stay for the rest of your hearing, but I will
have to talk to you later.
[The prepared statement of Senator McConnell appears as a
submission for the record.]
Chairman Leahy. I have a feeling you will be able to
overcome your sorrow at not being able to be here, but I know
you--to quote the statement most often heard among 100
Senators, ``Of course, I will read your statement in the record
afterwards.'' Thank you.
Senator Durbin.
OPENING STATEMENT OF HON. DICK DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Mr. Chairman, thank you very much. As
Chairman of the Subcommittee of the Senate Judiciary on
Constitutional Amendments, I have had a personal point of view
on this for a long time when it comes to the nature of
amendments being offered. I think the Constitution as written,
with the amendments that have been adopted, constitute a sacred
document that has guided this country well for decades and
centuries.
Too often I have seen proposals for constitutional
amendments which, in my view, take a roller to a Rembrandt, and
I have resisted many efforts to entice me into cosponsoring
constitutional amendments with regard exceptions. This is one
of those exceptions. I am cosponsoring this amendment offered
by Senators Tom Udall and Michael Bennet. I believe the time
has come for us to do something to save this democracy and the
political process that supports it.
Second, let me say at the outset that there is hardly a
politician or elected official alive who has not changed his or
her position on an issue, and that happens. I can recall when
Abraham Lincoln was criticized for changing his position on an
issue, and he said, ``I would rather be right some of the time
than wrong all the time.'' So we all at least can be charged
with having done that in the past and maybe be guilty of the
charge.
But it is breathtaking the change that has taken place with
the Republican Party in the United States Senate on this issue.
In 1987, the Republican Senate leader who just testified,
Senator McConnell, introduced a constitutional amendment--a
constitutional amendment very similar to the one before us
today, and this is what he said on the floor of the Senate in
introducing it, about his amendment: ``This would give the
Congress an opportunity to level the playing field, to
eliminate the millionaire's loophole, put everybody on the same
footing, so that the meat cutter and coal miner and taxicab
driver, and anybody else in American society who can go out and
get a lot of support from a lot of people could still raise the
money, use the television, get into the race, and build a
contest.''
He went on to say, ``The fellow who inherited it or is
shrewd enough to go and get it could not use his personal money
to buy political office. He would have to get the same broad-
based support the rest of us who are not millionaires must do.
That is a problem we can cure immediately.''
That is what Senator McConnell said about his
constitutional amendment offered in 1987 which parallels the
amendment before this Committee today. And then time passed,
and by 2002 the story was different. By 2002 we were debating
McCain-Feingold, the elimination of soft money in the campaign
process. And then the position was taken by the Senator from
Kentucky and many on his side, we just want full disclosure. We
just want to know who is contributing the money. The American
people have a right to know. That was the mantra for a long
period of time. I just asked my colleague Senator Schumer, as
Chairman of the Rules Committee, whether any Republicans
supported our effort when we introduced the DISCLOSE bill,
which would have disclosed the contributors to political
campaigns. And our best memory is no, they now do not support
disclosure.
And so here we are today. Many of us had hoped that Fair
Elections Now, a public financing bill which I introduced 7
years ago and keep reintroducing, might have a chance. But with
the Citizens United decision, I am afraid that is not likely.
When you look at the reality of what we are facing, so far
this year spending by outside groups in campaigns has tripled--
tripled--since the last midterm election: 27.6 million in 2010,
97.7 million so far this year. In 2006, before Citizens United,
these groups spent $3.5 million.
In 2012, super PACs spent more than $130 million on Federal
elections; 60 percent of all super PAC donations that year came
from an elite class of 159 Americans. One hundred and fifty-
nine Americans accounted for 60 percent of the money from super
PACs going into these election campaigns.
In North Carolina, that elite group had one member; 72
percent of all outside spending in 2010 came from a millionaire
named Art Pope. Can you guess who Governor Pat McCrory named as
North Carolina's budget chief writer in 2013? Mr. Pope, who
bankrolled the Governor's campaign and supported the Republican
super majority that recently enacted the most restrictive voter
suppression law in America.
Mr. Chairman, we need to do this to save the political
process in America. What is at stake here is going to
discourage mere mortals from engaging in this process. When you
are up against multi-millionaires from the start with unlimited
contributions through Citizens United, you will lose the
appetite for the contest. We cannot let that happen. Neither
political party can let that happen.
Chairman Leahy. Senator Durbin, I thank you, and I know at
some point you are going to be taking over the gavel in the
hearing. Senator Cruz----
Senator Grassley. Senator Cornyn wants a statement in the
record.
Chairman Leahy. And Senator Cornyn has requested a
statement for the record, and, of course, without objection, it
will be made part of the record.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Senator Cruz.
OPENING STATEMENT OF HON. TED CRUZ,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cruz. Thank you, Mr. Chairman.
America is an exceptional country. When our country was
founded, we crafted a Constitution that Thomas Jefferson
explained would ``serve as chains to bind the mischief of
Government.'' There has never been more mischief of Government
than there is right now.
And the Bill of Rights, the first ten amendments to the
Constitution, are precious to every American. The Bill of
Rights begins with the First Amendment. For over two centuries,
Congress has not dared to mess with the Bill of Rights. This
amendment here today, if adopted, would repeal the free speech
protections of the First Amendment.
Mr. Chairman, when citizens hear that, they gasp. As immune
as we are to abuse of power from Government, citizens are still
astonished that Members of Congress would dare support
repealing the First Amendment.
And let us be clear. This amendment does not just do it for
corporations; it does not just do it for billionaires. Nothing
in this amendment is limited to corporations or billionaires.
This amendment, if adopted, would give Congress absolute
authority to regulate the political speech of every single
American, with no limitations whatsoever. This amendment is
about power and it is about politicians silencing the citizens.
Mr. Chairman, when did elected Democrats abandon the Bill
of Rights? Mr. Chairman, where did the liberals go? You know,
in 1997, when a similar amendment was introduced, here is what
Ted Kennedy said about it: ``In the entire history of the
Constitution, we have never amended the Bill of Rights, and now
is no time to start. It would be wrong to carve an exception to
the First Amendment. Campaign finance reform is a serious
problem, but it does not require that we twist the meaning of
the Constitution.''
Mr. Chairman, here is what Democrat Russ Feingold said at
the time: ``Mr. President, the Constitution of this country was
not a rough draft. We must stop treating it as such. The First
Amendment is the bedrock of the Bill of Rights. It has as its
underpinnings that each individual has a natural and
fundamental right to disagree with their elected leaders. Not
if this amendment passes. If this amendment passes, Congress
can say you, the citizens, are no longer citizens, you are
subjects, because we have repealed the First Amendment and
taken away your ability to speak.''
Senator Feingold in 2001 said the following about a very
similar amendment: ``This proposed constitutional amendment
would change the scope of the First Amendment. I find nothing
more sacred and treasured in our Nation's history than the
First Amendment. It is the bedrock of the Bill of Rights. It
has as its underpinnings the notion that every citizen has a
fundamental right to disagree with his or her Government. I
want to leave the First Amendment undisturbed.''
Mr. Chairman, I agree with Ted Kennedy and Russ Feingold.
And where are the liberals today? Why is there not a liberal
standing here defending the Bill of Rights and the First
Amendment?
Mr. Chairman, 42 Democrats have signed their name to a
constitutional amendment that would give Congress the power to
muzzle Planned Parenthood and the National Right to Life; 42
Democrats have signed their name to giving Congress the right
to muzzle the Sierra Club, to muzzle the National Rifle
Association and the Brady Center on Handgun Violence, to muzzle
Michael Moore and Dinesh D'Souza, to muzzle the Teamsters and
the National Education Association, to muzzle the NAACP, to
muzzle the Anti-Defamation League, to muzzle pastors and
priests and rabbis who organize their parishioners to be
involved in politics.
Mr. Chairman, I am today introducing two bills to further
protect the free speech rights of individuals, and I will be
discussing those later in this hearing. But I would note this
amendment, if adopted, would give Congress the power to ban
books and to ban movies.
And, by the way, Citizens United was about fining a movie
maker who made a movie critical of Hillary Clinton.
Mr. Chairman, Ray Bradbury would be astonished because we
are seeing Fahrenheit 451 Democrats today. The American people
should be angry about this. And, Mr. Chairman, the Senators who
put their name to this should be embarrassed that they have
signed up for repealing the free speech amendment, the First
Amendment.
Thank you.
Chairman Leahy. The statements have been completed, and I
wonder if Senator McKissick and Mr. Abrams and Professor Raskin
could join us at the appropriate places at the table.
The first witness will--you know, it does--Officer, please
remove the man holding up the sign, contrary to the rulings of
the Chair.
As the Committee knows, I have not taken a position one way
or the other on these constitutional amendments, but we are
having a hearing, and I want people who are for or against them
to be able to be here. But I do not want people blocking the
views of others. You have plenty of time to do your photo ops
outside both for and against it. But let us hear from the
witnesses.
The first witness is Senator Floyd McKissick. He has served
in the North Carolina State Senate since 2007. He is currently
the Deputy Minority Leader as well as a partner at the law firm
of McKissick and McKissick. I would also note in the audience--
Senator, I apologize for the voice. It is allergies. But I also
would note for the record that your son is here in the
audience. I note that for some day when somebody is looking
through the McKissick archives, they will see that.
Please go ahead, Senator.
STATEMENT OF HON. FLOYD B. McKISSICK, JR., STATE
SENATOR, NORTH CAROLINA GENERAL ASSEMBLY, RALEIGH, NORTH
CAROLINA
Mr. McKissick. Thank you, Mr. Chairman. It is a privilege
and honor to be here this morning. I want to thank all of you
for this opportunity to testify. My name is Floyd McKissick,
Jr. I am a long-time resident of North Carolina, and I have the
honor of serving in the North Carolina State Senate, where I
represent Durham and Granville Counties and act as the Deputy
Democratic Leader. I first entered the legislature in 2007, so
my time there can be roughly divided into two different
periods: before Citizens United and after.
I entered politics for the same reason I am sure that many
of you did. I saw ways that North Carolina's government could
work more effectively to make a difference for the people in my
community who needed a hand up, a solid education, better jobs,
and safer communities.
All that changed after Citizens United. In 2010 alone,
Americans for Prosperity, a group funded in large part by the
Koch brothers, spent more than a quarter of a million dollars
in North Carolina. Another group, Civitas Action, spent more. A
new organization that sprang up, called Real Jobs North
Carolina, spent almost $1.5 million. Overall, three-quarters of
all the outside money in State races that year were tied to one
man: Art Pope. Pope and his associates poured money into 22
targeted races, and the candidates they backed won in 18 of
those races.
In 2012, $8.1 million in outside money flooded into the
Governor's race. A large portion of that money was tied to Mr.
Pope. And before he had even been sworn into office, our new
Governor announced who would be writing the new State budget.
Surprise, surprise. Art Pope is our State budget director this
time. He could afford to spend lavishly, and he certainly did,
and he got his money's worth.
When Justice Kennedy wrote his decision in Citizens United,
he said that limitless outside spending ``[does] not give rise
to corruption or the appearance of corruption.'' Try telling
that to anyone who saw how the sausage got made in North
Carolina.
There are winners and losers in every budget. And in the
budget he produced, it is undeniable that Mr. Pope won big. Our
State slashed corporate income taxes and lowered the share paid
by the State's wealthiest people.
As for the losers, there were plenty. Tens of thousands of
people lost their unemployment benefits. Public education
funding was drastically cut back. Half a million low-income
people were refused access to Medicaid that we had already paid
for. And while millionaires got a tax break, some working
families actually got a tax hike.
But that is not all. After the tide of dark money flooded
into our elections, we saw two more big changes that should
cause great concern for all of us.
First, it got harder for ordinary people to vote. A month
after the Supreme Court gutted Section 5 of the Voting Rights
Act, North Carolina passed one of the most restrictive anti-
voter laws in the country. It cut the early vote period from 17
days down to 10 days. It eliminated the ability of teenagers to
preregister to vote before their 18th birthday. And it
eliminated same-day voter registration. It also enacted a rigid
voter identification requirement that required forms of ID that
more than 300,000 North Carolinians do not have. Those
restrictions have had the biggest impact on the students, the
elderly, the poor, and people of color. Simply put, Art Pope,
Americans for Prosperity, and the Koch brothers paid big money
to roll back the civil rights advances that generations of
Americans have paid for in their blood.
Second, it got easier for rich people to pour money into
elections. Big donors got new opportunities to write even
bigger checks to candidates, and they got more ways to avoid
any kind of disclosures. And any public financing system that
we had in the State, including one that provided for clean
judicial elections, was gutted. The result of that decision was
particularly painful to me this year because I watched one of
our sitting Supreme Court Justices, Robin Hudson, attacked in
the most despicable and dishonest way. A million dollars in
outside money was poured into that primary race, with more than
$650,000 coming from a Washington-based organization trying to
protect the anti-voter tactics and suppression laws that were
pushed through the legislature. I cannot think of a more
vicious cycle than taking a little more power from the voters
and handing it to the big spenders.
Well, once big money got into our elections, that is
exactly what happened. I believe that public service is a
calling. We are called to use our gifts to create laws, to
exercise our judgment, and to administer our cities, our
States, and our Nation. Citizens United, the McCutcheon
decision, and the Supreme Court decisions that have occurred
have made this a mockery.
What is left does not look like democracy. Democracy is
when the Government represents the people. Today it seems that
big money and big donors pull the strings while ordinary people
find it harder and harder for their voices to be heard. You
have a chance to restore this democracy, to restore the First
Amendment, and to make clear that our Government should
represent all the people, not just the wealthy few.
I urge you to support Senate Joint Resolution 19.
[The prepared statement of Mr. McKissick appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Senator.
The next witness is Mr. Floyd Abrams, a senior partner at
the law firm Cahill Gordon and Reindel in New York, and not a
stranger to this Committee or this Senator over the years.
Mr. Abrams, please go ahead, sir.
STATEMENT OF FLOYD ABRAMS, PARTNER,
CAHILL GORDON & REINDEL LLP, NEW YORK, NEW YORK
Mr. Abrams. Thank you, Senator Leahy. I appreciate your
invitation for me to appear here today. The description of the
constitutional amendment that is before you today states in its
text that it ``relate[s] to contributions and expenditures
intended to affect elections.''
That is one way to say it. I think it would have been more
revealing to say that it actually ``relate[s] to speech
intended to affect elections.'' I think it would be even more
accurate to say that it relates to limiting speech intended to
affect elections. And that is the core problem with it. It is
intended to limit speech about elections and it would do just
that.
To start at the beginning--and this has been said before;
it is worth repeating--no ruling providing First Amendment
protection has ever been reversed by a constitutional
amendment. No ruling by the Supreme Court. No speech that the
Supreme Court has concluded warranted First Amendment
protection has ever been transformed by a constitutional
amendment into becoming unprotected speech and, thus, subject
of criminal sanctions.
Think of what we protect under the First Amendment. Chief
Justice Roberts in the McCutcheon opinion observed that money
in politics may be ``repugnant to some, but so too does much of
what the First Amendment vigorously protects. If the First
Amendment protects flag burning, funeral protests, and Nazi
parades--despite the profound offense such spectacles cause--it
surely protects political campaign speech despite popular
opposition.''
The proposed amendment before you today deals with nothing
except political campaign speech. It does not deal with money
that is spent for any other purpose other than persuading
people to vote for or against. And as such, it would limit
speech that is at the heart of the First Amendment. And the
fact that the amendment is proposed in the name of equality
makes it no less threatening.
The Supreme Court observed, I think with particular
prescience, in the Buckley case, in an opinion joined by great
liberal jurists--Justice Brennan, Justice Marshall, Justice
Potter Stewart, stalwart defenders of the First Amendment--that
the concept that Government may restrict some elements--may
restrict the speech of some elements of our society in order to
enhance the relative voice of others is wholly foreign to the
First Amendment. It is that view, however, which is at the core
of this amendment which would reverse the Buckley case as well
as Citizens United. This amendment is not a Citizens United
amendment. It goes way back to the 1970s, and it would reverse
Buckley's ruling as well that independent expenditures are
protected by the First Amendment.
The title of the proposed amendment goes even farther. It
says that it would ``Restore Democracy to the American
People.'' I am willing to pass over in silence rhetorical
overkill about what democracy means, but the notion that
democracy would be restored--saved--by limiting speech is a
perversion of the English language. It is inconsistent with any
notion of democracy to say the way to accomplish it is to limit
speech.
So let me say in the most direct manner that it is deeply,
profoundly, obviously undemocratic to limit speech about who to
elect to public office.
The other pervasive problem with the amendment is that it
is rooted in the disturbing concept that those who hold office
in Federal and State legislatures, armed with all the
advantages of incumbency, may effectively prevent their
opponents from becoming known as a result of spending money to
put ads on describing who they are.
I would just conclude with this thought: It is not a
coincidence that until today the First Amendment has never been
amended. It is not a coincidence that no decision of the
Supreme Court affirming First Amendment rights has ever been
overruled by constitutional amendment. Emotions have run high
before about decisions of the Court which provided higher
levels of liberty than Members of this body thought was
appropriate. But self-restraint won the day, and I urge that
self-restraint win the day today.
Thank you.
[The prepared statement of Mr. Abrams appears as a
submission for the record.]
Chairman Leahy. Thank you, Mr. Abrams.
The next witness is Jamie Raskin. Professor Raskin teaches
constitutional law, legislation, and the First Amendment at
American University's Washington College of law here in
Washington, DC. If that is not enough to keep him busy, he also
serves as a Senator in the Maryland State Legislature.
So, Professor Raskin, welcome.
STATEMENT OF JAMIN B. ``JAMIE'' RASKIN, PROFESSOR OF LAW AND
DIRECTOR, PROGRAM ON LAW AND GOVERNMENT,
AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW, WASHINGTON, DC
Professor Raskin. Thank you very much, Mr. Chairman.
Delighted to be with you.
We have built two walls to protect American democracy. The
first is Jefferson's wall of separation between church and
state, which protects a flourishing religious realm and a
nation free from theocracy. The other is the wall we have built
brick by brick in statute over a century to separate
plutocratic money from democratic politics.
Starting with the 1907 ban on corporate contributions in
Federal races, which still stands, we have worked to wall off
vast corporate wealth and personal fortunes from campaigns,
defining the electoral arena as a place of equality. But 4
years ago, in Citizens United, a bitterly divided 5-4 Court
bulldozed a major block of the wall, the one that kept
trillions of dollars in corporate wealth from flowing into our
campaigns.
Three years ago, in Arizona Free Enterprise Club, the same
five Justices struck down public financing programs that use
matching funds to amplify the voices of poorer candidates
competing to be heard over the roar of big money. In a ``world
gone topsy-turvy,'' Justice Kagan wrote in dissent, the
majority treated ``additional campaign speech and electoral
competition'' as ``a First Amendment injury'' and struck down a
State law that ``expands public debate'' and ``provides more
voices, wider discussion, and greater competition.''
This year, in McCutcheon, the same five took a sledgehammer
to aggregate contribution limits, empowering tycoons to max out
to every Member of Congress and all of their opponents.
After five 5-4 decisions like these, the wall between
democracy and plutocracy is crumbling. If we keep waiting
around, the last few bricks will be removed soon, including
contribution limits, the ban on corporate contributions, rules
against coordinated expenditures, and the ban States have on
writing campaign checks in legislative session--all of them at
odds with the Orwellian dogma of five Justices, that money is
speech, corporations are people, and to identify corruption you
have got to find a bribe.
S.J. Res. 19 will enable us to protect democratic politics
and free market economics. In politics, we need to revive
democratic self-government where all voices can be heard and
not drowned out by billionaires who turn up the volume on their
sound tracks to ear-splitting levels and CEOs who write checks
with ``other people's money,'' as Justice Brandeis called it.
In economics, we need to strengthen businesses that
practice free market competition and pull the plug on rent-
seeking corporations that spend freely on campaigns now to
obtain tax breaks, sweetheart deals, and public subsidies
later.
Adam Smith, who favored honest competition and feared
industry capture of Government, would tell us that in campaign
finance, ``laissez isn't fair.''
When Justice Scalia went on CNN and defended Citizens
United, he invoked everyone's favorite Founder: ``I think
Thomas Jefferson would have said, `The more speech, the
better,' '' he opined. But the Sage of Monticello never equated
corporations with citizens, and he voiced dread at the prospect
of plutocracy. He warned future generations not to embrace a
``splendid government of an aristocracy, founded on banking
institutions'' and corporations ``riding and ruling over the
plundered ploughman and beggared yeomanry.'' This nightmare
vision sounds a lot like the Citizens United era. The vast
majority of Americans are appalled. Eighty percent oppose
Citizens United and unlimited spending; 74 percent of voters in
Colorado and Montana voted to call for this amendment; and 79
percent of the people favor limits on campaign money.
This amendment protects our power to set such limits, not
by creating perfect equality--billionaires will always have
greater resources--but by assuring that the rich will at least
inhabit the same polity as nurses, teachers, and small business
people. It is one thing to tell middle-class Americans that
their $100 contribution has to go up against a $5,000
contribution, a scale of 50:1, quite another to say it has to
go up against a $5 million contribution or expenditure, a scale
of 50,000:1. A regime like that fits plutocracy, not democracy.
I do think the amendment should more clearly empower the
people to wall off campaigns from corporate treasury wealth,
which has been seen as a peril to democracy for more than a
century. This is no assault on the First Amendment because
Citizens United did not increase the rights of a single citizen
to express his or her views. All it did was confer power on
CEOs to write checks on the corporate treasury account for
political campaigns without a vote of the shareholders and
without notice to the shareholders. The case has nothing to do
with increasing free speech of the people and everything to do
with increasing the power of the CEOs over the people. If we do
nothing now, pretty soon the people will no longer govern the
corporations; the corporations will govern the people.
At times like this, when the Court has undermined
democracy, we have amended the Constitution. We did it with the
disenfranchisement of women, and we did it when the Court
upheld poll taxes. Most of the amendments added since the Bill
of Rights have strengthened the progress of democratic self-
government and expanded the political rights of the people even
as the defenders of inequality and elite privilege protested
that their rights were being violated. So do not be
intimidated. The people are with you.
[The prepared statement of Professor Raskin appears as a
submission for the record.]
Chairman Leahy. Thank you, Professor Raskin.
Let me begin in my time, and then I am going to turn the
gavel over to Senator Durbin. Of course, I will be followed by
Senator Grassley.
Senator McKissick, the story of our Constitution has been
one of progressive inclusion, as I read it. In fact, many of
our Founding Fathers believed only white land owners should be
allowed to participate in our elections. Each generation of
Americans has expanded on the promise of our founding: the
march toward a more perfect union.
We have amended the Constitution many times to ensure our
representative democracy. The 14th and 15th Amendments, for
example, they transformed the Constitution. They guaranteed the
equal protection of law for all Americans, and they prohibited
the abridgment of the right to vote on the basis of race.
The 17th Amendment gave Americans the right to elect
Senators of their choosing because there was a concern that
corporations were corrupting our State legislatures so they
would elect Senators who were beholden to those corporations.
We continued with the 19th Amendment, expansion of the
right to vote to women; the Civil Rights Act of 1964; the
Voting Rights Act of 1965; the 26th Amendment's extension of
the vote to young people.
Now, I mention all of those because they mark progress on
the path of inclusion and make our country more representative.
And I fear that these Supreme Court decisions have reversed
that course.
Your father was a civil rights leader. You continue his
legacy as an elected official in North Carolina. Do you believe
the unprecedented money that flowed into State races in the
wake of Citizens United has led to a more representative State
government in North Carolina?
Mr. McKissick. It absolutely has not led to a more
representative government in North Carolina at all. The will of
the people of the State of North Carolina is not being heard,
and I think that is represented by these Moral Monday
demonstrations which have occurred in our State. They started
out with 500 people coming out every Monday when we convened
our sessions protesting many of these regressive policies that
have been implemented. They grew to masses of 7,500 people.
There were close to 1,000 people arrested because they were
absolutely opposed to the policies, initiatives, and
legislation that were coming out of Raleigh. I mean, these were
actions that were not only impacting voting rights for
individuals. If you had polled people about these voter
suppression laws that were passed and asked them whether they
liked the early vote period, well, we have eliminated now 1
week of that early vote period. In 2008, we had over 700,000
people vote that first week. By the time 2012 came, it was over
900,000 people voting.
People also had the right to do same-day voter registration
when they came in for early voting. There were people getting
able to preregister when they were 17 years old so they could
vote at 18 years old.
If you asked the vast majority of North Carolinians did
they like the early vote period, did they like the right to
exercise their constitutional privilege in a broader, more
expansive way, the answer would be resoundingly yes.
Chairman Leahy. Thank you.
And, Professor Raskin, you have heard some who have
characterized the Udall amendment where we are concerning today
as an effort to repeal the First Amendment. Now, I do not
believe that is accurate, but I hear it in paid ads and others,
and I guess if some of the billionaires are going to profit by
this, paying for that enough time in advertisements, Americans
may believe it.
You are a constitutional law scholar. If this proposed
constitutional amendment were to be ratified, would it repeal
the First Amendment?
Professor Raskin. Of course not. The first thing we have to
remark is that the Citizens United case did not endow a single
individual with any right to speak that he or she did not
already have. All the employees of the corporation, all of the
members of the board, all of the executives could go out and
spend whatever they wanted of their own money. All that
Citizens United did was to say that the CEO could take the
corporate checkbook and start writing checks to put into
politics, and that CEO could already have spent his own money
in politics. So what we have done is we have converted every
corporate treasury in the country into a potential political
slush fund.
But, you know, in a deeper sense, Mr. Abrams raised the
question about Buckley v. Valeo and the rights not of
corporations but, say, of billionaires in order to spend. You
know, there is a very important Supreme Court decision called
Ward v. Rock Against Racism in 1989 where there was a terrific
group called ``Rock Against Racism'' which would put on
concerts in Central Park, but they wanted to crank the sound
all the way up so that the preschool could not meet and the
yoga class could not meet and other people who were doing other
musical exercises could not do it, and the Central Park
authorities told them they had to turn it down. And the Supreme
Court said that is appropriate because you do not have the
right under the First Amendment to drown out everybody else's
speech. And I think if you understand that case, you can
understand why the billionaires should not be able to take over
whole States like North Carolina or like Montana. And I would
urge everybody to read the filings of the State of Montana in
the Bullock case because what the State described was a history
of massive corporate corruption from outside of the State to
take over their democracy, and the ban on corporate spending
there was an attempt for the people of Montana to govern
themselves. And that is really what all of this is about--self-
government, so that democracy is for the people.
Chairman Leahy. Well, I have further questions which I will
submit for the record because I want to keep within our time
limits.
[The questions of Chairman Leahy appears as a submission
for the record.]
Chairman Leahy. My time is up, and I yield to Senator
Grassley.
Senator Grassley. Thank you. Before I ask my first question
of Mr. Abrams, I want to correct something that often shows up
in the press, and one of my colleagues has said the same thing
today. Citizens United said--I mean the comment was made that
Citizens United opened the door to millions of dollars in
contributions. What Citizens United dealt with, and only, is
with expenditures and has no effect on campaign contributions.
Mr. Abrams, last Friday, a front-page article of The
Washington Post wrote, ``Political nonprofit groups have become
major players in elections since the Supreme Court's 2010
Citizens United decision paved the way for unlimited political
spending by corporations and unions.''
Now, I know that political nonprofit groups have been
active in campaigns for at least 10 years, long before Citizens
United was decided. My question: Am I right in thinking this
point made in The Washington Post article as well as other
outlets is incorrect?
Mr. Abrams. Well, I would say that I do not think it is
correct to say that these groups are playing an enormously
greater role than they used to. As you point out, they have
been around for a while. There is also nothing wrong with them
playing a greater role. The underlying thesis of critics of
this is that--and you have heard it today a lot--outside money
is bad money, is money that should not be around, should not be
allowed. And I reject that, and the Supreme Court has rejected
that.
On the specific issue of nonprofits, nonprofits do not have
to publicly report their spending, except in certain areas, so
it is hard to know exactly how much more involvement that they
have had. But only a small percentage, this we do know, of the
$7 billion spent in the 2012 election came from nonprofit
groups or other unreported sources.
Senator Grassley. Again, Mr. Abrams, there are
organizations in Washington that say they want to limit the
role or influence of money in politics. Is that goal consistent
with the First Amendment?
Mr. Abrams. Well, I think what they are really saying is
that they want to limit the speech that money allows. When
people complain that there is going to be more of this and more
of that or that the speech will contain falsehoods or that
politicians or others will be accused in ways that they find
uncongenial, you know, what they are really saying is that the
money is doing bad things, and that is at its core inconsistent
with the First Amendment. The First Amendment favors speech. It
favors more rather than less speech. It favors speech from
diverse sources. It rejects the notion that speech can be
constrained or limited because one person has more than another
person.
All of that comes with the First Amendment, and so a
general denunciation of money in politics is really a
denunciation of politics itself and of the public debate that
we have in politics.
Senator Grassley. My next question deals with a point you
made in your opening remarks, and I ask it only by way of
giving you an opportunity to emphasize what I think is a very
important point. Supporters of the proposed amendment think
that it is needed to prevent wealthy donors from drowning out
ordinary citizens and to restore democracy. Could you elaborate
on how this position is fundamentally at odds with the
constitutional protection of free speech?
Mr. Abrams. Yes. When somebody says that my speech will
drown out someone else's speech and, therefore, I should say
less, it is the functional equivalent of telling a newspaper,
``You really ought to have fewer editorials. You really should
not spend your space denouncing one candidate for office. It is
just not fair. You have too much power.''
I grew up at a time when Democrats--Adlai Stevenson was
running against the one-party press. Every newspaper was
Republican--just about every one in those days. No one would
have thought that the answer to the so-called one-party press
was saying the press cannot print something or they are
printing too much or they are drowning out the opposition. That
comes on the menu of the First Amendment, and that menu
includes as much speech as one wants.
Senator Durbin [presiding]. I would like to address my
first comment and question to Professor Raskin. We recently
invited retired Justice John Paul Stevens to testify before the
Senate Rules Committee, which was an exceptional opportunity
for us to hear his thinking, and he raised some interesting
questions about this issue. He said, ``While money is used to
finance speech, money is not speech. Speech is only one of the
activities that are financed by campaign contributions and
expenditures. Those financial activities should not receive the
same constitutional protection as speech itself. After all,
campaign funds were used to finance the Watergate burglaries,
actions that clearly were not protected by the First
Amendment.''
Then in closing in his remarks, he proffered a sample
constitutional amendment on the subject of reversing Buckley v.
Valeo, and I think he made an observation that we ought to
consider, even those of us who support Senate Joint Resolution
19. He basically suggested that we should include the word
``reasonable'' when we are talking about limitations on
campaign spending, and here is what he said: ``I think it wise
to include the word `reasonable' to ensure that legislatures do
not prescribe limits that are so low that incumbents have an
unfair advantage or that interfere with the freedom of the
press.''
Do you believe that the word ``reasonable'' would be a
positive addition to this Senate joint resolution?
Professor Raskin. I do, and it appears in the Fourth
Amendment, of course, and I think it would make sense to appear
in the 28th Amendment as well. Of course, reasonableness
applies to all of the constitutional amendments, and you can
find dozens of Supreme Court cases which read a reasonable
requirement in, which is why I found some of the rhetoric a
little overheated that this is an attempt to impose
unreasonable limits. Nonetheless, I would definitely take care
of that problem by inserting the word.
Your other point, though, about money not equaling speech
is a critical issue for people to understand. I mean, there are
lots of forms of purchase and exchange that we criminalize--for
example, buying sex. We do not say if someone wants to purchase
the services of a prostitute, well, that is just an expression
of their speech, because we look at what the social meaning and
context of the use of money in that way is. We look at the
meaning not just of the speech involved, but the act itself.
And I think even Mr. Abrams and the people on the other
side on this issue take the position that laws against bribery
are okay, and it is not clear according to their position why.
After all, if I just feel very strongly about an issue and I
want to give you $1,000 or $1 million to go my way, why
shouldn't you be able to accept it? And I think it is because
we believe that within the governmental process and the
electoral process, there are right reasons for those who hold
public office to make decisions, and there are wrong reasons.
And a wrong reason is the money that you are either going to
put in your pocket or huge amounts of money that you are going
to put in your campaign or lots of spending to take place. So
why can't we take into account the entire social context of
money? Why just when the politican gets rich?
So Justice Stevens has repeatedly argued, money, of course,
is not speech, money is property. It is a medium of exchange.
Speech has verbs and adjectives and nouns, and it is simply
what the philosophers call a ``category error'' to mix them up.
Senator Durbin. Well, I might say, Mr. Abrams, the Fair
Elections Now bill that I have introduced, you suggested
incumbents are trying to protect themselves by arguing against
Citizens United. I commend that bill to you because we offer,
for those who wish to voluntarily become part of that process,
a greater opportunity for challengers that experience suggests
that they currently experience--that they currently have under
the law.
Senator McKissick, one of the things that has been raised
consistently is that we ought to let a thousands flowers bloom
here, and we have been chided, saying we are not being good
liberals by not expanding this. Let me ask you, when it comes
to the issue of North Carolina and this gentleman Mr. Pope,
whom I have not met, it appears that he was responsible for 72
percent of all outside spending in your State in the year 2010,
the 2010 election. Instead of really being an open process in
North Carolina, it turned out to be a very elite situation, an
elite situation where his wealth gave him more power than the
average person living in North Carolina to express his
political will.
Could you comment on what has happened to the North
Carolina political process because of this favoritism toward
the elite?
Mr. McKissick. Well, I think as a result of Art Pope's
capacity to give millions and millions of dollars, he basically
tainted the whole election process in many respects because he
had influence substantially disproportional to the number of
people who shared his beliefs.
When it comes to the political process, as we have seen it
today, there are many people who feel as if they have been
disenfranchised in terms of voting rights, in terms of women
rights. They have gone in now, and as a result of legislation
that has been adopted, there will be new ambulatory standards
applied to abortion clinics. As a result, in North Carolina--
there are 16 abortion clinics--all of them will be closed
except for one. They have gone in and purged people from boards
and commissions that have been previously appointed by prior
Governors and prior members of the General Assembly, either by
the President Pro Tem or Speaker of the House. All of their
terms were shortened so they could go in and appoint people
that shared their philosophies.
When it comes to public education, there was legislation
that was passed that would virtually eliminate teacher tenure
in our State. That was challenged in the court and found to be
unconstitutional. But many measures affecting public education
that the vast majority of North Carolinians are opposed to that
in many respects have now been adopted and been legislated. I
mean, no limitation on the number of kids in the classroom; we
are 46th in teacher pay in this country--things that are
putting North Carolina behind. And many of these positions,
many of these issues, many things dealing with unemployment
compensation, we have now--rather than giving people 26 weeks
of benefits, we only have gone to 12 to 20 weeks of benefits.
We are the only State in America to disqualify our residents
from receiving long-term unemployment benefits that were
eligible for and it cost us $780 million, as well with the
failure to expand Medicaid.
So a lot of things have happened in our State that the vast
majority of North Carolinians, if polled, would not agree with,
but they have been implemented as a result of the amazing level
and financial capacity of Art Pope to give and to influence the
outcome of 18 critical races.
Senator Durbin. Senator Cornyn. I am sorry. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Mr. Abrams, I am not the only one who believes that you are
the leading First Amendment lawyer in the country. You have--
and you are not a member of my party either.
Mr. Abrams. That is true. Not yet.
[Laughter.]
Senator Hatch. I would like that. I like the thought.
We are very privileged to have you here today, and we are
grateful to have you other witnesses as well.
Now, Mr. Abrams, this is not the first constitutional
amendment proposed to restrict political speech. This one,
however, goes beyond what we have seen in the past. As far as I
can tell, for example, Senator Joint Resolution 19 is the fifth
one for the purpose of achieving what it calls political
equality. Under this amendment, the Government could
constitutionally redefine political equality and decide whose
speech must be suppressed or should be suppressed or allowed in
order to achieve it.
Isn't this at odds with America's entire history regarding
Government control of speech?
Mr. Abrams. Well, it is. It gives, you know, enormous power
to the legislatures, to Congress and to the State, to enforce
the law. And I would assume that the courts would be very
deferential to anything that those legislatures did. And that
being said, while there might be an equal protection or other
arguments made, I really believe that an amendment of this
breadth would change substantially and in an irrevocable way,
except if there were another constitutional amendment, the
whole nature of American society as a speech-protecting
society.
Senator Hatch. Well, another difference is that this
amendment would give the Government authority to control not
only money but also what it called ``in-kind equivalence.''
Like the notion of political equality, this is something
completely new.
Now, it appears to me that if this amendment passes, the
Government will be able to define this category however it
wants and, therefore, control of what--they would be able to
control whatever Government wants.
Now, how far do you think this new dimension of regulation
extends? And do you expect there would have to be litigation to
figure out how it applies?
Mr. Abrams. Oh, there is no doubt of that. There would have
to be enormous litigation. Look, the reality is--how shall I
say this to Members of Congress here? If you provide the
Congress or State legislatures with power, they are likely to
use it.
Senator Hatch. Right.
Mr. Abrams. And they are likely to use it in this area in a
speech-destructive way. I mean, that is what this whole thing
is about. I understand the argument of equality that more
people--few people have great wealth, that wealth gives more
power, as has been said. But the effect of this amendment would
be to embody into our law by changing, substantively changing
and limiting the First Amendment in a way in which at the least
we are going to have years and years of litigation. But I
fear--I do not mind that personally--but what we are going to
have beyond that is a significantly diminished ability to have
the sort of ongoing confrontations at length that we have in
our electoral process. The 2012 election, in my view, was a
good example of the system working. There was lots of money out
there. There was lots of speech. People heard, sometimes more
than they wanted to, but they heard the views of the parties
and had a chance to vote. That is the way the system ought to
work, and that is threatened by this legislation, this
amendment.
Senator Hatch. In his prepared statement, Professor Raskin
says that the Supreme Court's decision in Citizens United v.
FEC eliminated the statutory provision ``that kept trillions of
dollars in corporate . . . wealth from flowing into Federal
campaigns.'' I think that is a misleading description of the
case. As I read it, the Citizens United case involved a
nonprofit organization, not a wealthy for-profit corporation,
and the case did not involve campaign contributions at all. Am
I right?
Mr. Abrams. Yes. It did not involve contributions at all,
and it left standing the contribution section.
Senator Hatch. Also, have we seen a flood of corporate
wealth flowing into Federal campaigns since the Citizens United
decision?
Mr. Abrams. We have seen a lot of individuals giving money.
That is where the big money has come from. We have seen an
increase in the amount of money from what I would call Main
Street rather than Wall Street. What we have not seen is
precisely what was predicted. We have not seen enormous sums,
let alone trillions of dollars, from the biggest companies in
America flowing into the electoral process. That just has not
happened.
Senator Hatch. My time is up, Mr. Chairman.
Senator Durbin. Thank you, Senator Hatch.
Senator Schumer? And I might note that there are two roll
call votes on the floor, so if you see the movement around
here, it is an effort to try to make the vote and keep the
Committee hearing continuing. Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman, and I appreciate
all the witnesses being here, as well as Leader Reid and Leader
McConnell being here as well.
I have been sort of really surprised at the level of
rhetoric that we have heard from Senator McConnell and Senator
Cruz. In fact, I think they want to replace logic with
hyperbole. The bottom line is Senator McConnell says how
shockingly bad this proposal is. Well, I will tell you what
most people, most Americans think is shockingly bad: that our
system has become distorted by a few who have a lot of money
drowning out the voices of the others.
When John Stuart Mill said the answer to restrictions of
speech is more speech, he did not mean just from one side. And
the world did not exist that way then. But it exists now.
Then Senator Cruz said Americans would gasp if they heard
what Democrats are trying to do. I will tell you what makes the
American people gasp: It is that a small handful of people can
have a huge effect on our political system, and not just
defending incumbents. What a canard that is. Most of the money
that has come from the super PACs and from many of these groups
are knocking out incumbents, particularly those from the other
side, whether they be Republican or Democrat.
Senator Cruz says that we should be embarrassed about this
amendment? I will tell you, Senator Cruz, I am embarrassed
about how our system is distorted by literally now billions of
dollars coming into this system undisclosed, unregulated, and
unanswered.
And Senator Cruz, maybe he fancies himself to be a
constitutional expert. He knows that no amendment is absolute.
His rhetoric, his over-the-top rhetoric here makes it seem like
if you support this amendment, you are against the First
Amendment.
Well, I want to ask you, Senator Cruz. Are you against
anti-child pornography laws? He is not here, but would he be
against anti-child pornography laws? Does that make him against
the First Amendment? Is he an absolutist on the First
Amendment? Is he against the ability to falsely scream--that
you should--does he think everyone should be allowed to falsely
scream ``Fire'' in a crowded theater? And if anyone is opposed
to that, are they opposed to the whole First Amendment and
against free speech? Libel laws? If you are for libel laws,
does that mean you are against free speech and you are against
the First Amendment? Absolutely not. We have always had
balancing tests for every amendment.
Some of my colleagues on the other side I know do not
believe there should be one for the Second Amendment. I believe
there should, but I believe there is a right to bear arms. And
I do not like seeing it through a pinhole. But that is neither
here nor there.
We have always had balancing tests for every amendment.
They are not absolute. And to say that you cannot have some
regulation when billions of dollars cascade into the system and
that is unconstitutional is false. It is absolutely false. It
is against 100 years of the tradition in this country.
And we know what is going on here. I guarantee you that
Senator McConnell would not have flipped his position,
particularly on disclosure, if the vast majority of the money,
unregulated money coming into the system were from Democrats
not Republicans. We know that, because I remember him being
here, the strongest advocate of disclosure. We cannot get a
Republican to be on a single disclosure bill. I am sure even
Mr. Abrams would agree that disclosure--the Supreme Court does
agree--is not against the First Amendment.
Mr. Abrams. Yes. Yes, that is correct.
Senator Schumer. And I am sure he might agree that
disclosure would be salutary even if he were not for limiting
the amount of money that could be spent. Would you agree with
that?
Mr. Abrams. I think some more disclosure would be salutary,
yes.
Senator Schumer. Okay. So here is what I--I mean, to say
that when it comes to money there should be no balancing test
but when it comes to other parts of this amendment and other
amendments there should be a balancing test is logically false,
demonstrably false. And all the rhetoric, the overheated
rhetoric, the hyperbole that we heard from Senator Cruz just
defies logic, defies constitutional tradition. And it is not
going to make us back down.
I do not believe the Koch brothers are being denied their
First Amendment rights or would be under any legislation this
Congress would pass. I do not believe it is the same exact part
of the Constitution, same dearness that we hold in free speech
to get up on a soapbox and make a speech or to publish a
broadside or a newspaper as it is to put the 11,427th ad on the
air, in fact, to make sure you buy all the available ad space
on the air so your opponent cannot get a word in--I do not
believe that is in the spirit of free speech, not just today
but when James Madison, Thomas Jefferson, and our great, great
Founders, the most brilliant group of men ever assembled, in my
opinion--people, although they were just men; we wish there
were some women there.
[Laughter.]
Senator Schumer. I do not think this is--I think if Thomas
Jefferson were looking down, the author of the Bill of Rights,
on what is being proposed here, he would agree with it. He
would agree that the First Amendment cannot be absolute. He
would agree that to keep a democracy going you cannot have a
handful of a few who are so wealthy that they can influence the
process and drown out the voices of the others. Any of us who
has run for office and faced one of these super PACs knows,
yes, you can get on your soapbox and distribute a leaflet and
answer it, but in the way our political system works, you do
not have a choice.
So I would like to get back to a fact-based, history-based
debate on this measure and not this overheated rhetoric that if
you are for this constitutional amendment, you are against the
First Amendment. The First Amendment has always, always, always
had a balancing test. It did then, it does now. And if there
ever is a balance that is needed, it is to restore some
semblance of one person, one vote, some of the equality that
the Founding Fathers sought in our political system.
I have gone over my time because I was a little bit
excited.
[Laughter.]
Senator Klobuchar. Okay. They are asking us to take a brief
recess, or I will miss the vote, which will be monumental. So
we will return very soon when Senator Durbin returns. Thank you
very much. We are in recess.
[Whereupon, at 12:14 p.m., the Committee was recessed.]
[Whereupon, at 12:21 p.m., the Committee reconvened.]
Senator Whitehouse. My apologies for what we are facing
here, but we are trying to get two votes in and keep the
Committee active. And so Senator Whitehouse has already voted
on the first amendment, and I am going to recognize him at this
point. So if you see the musical chairs here, it is an effort
to keep two things going at once. Senator Whitehouse?
Senator Whitehouse. We can indeed walk and chew gum.
Nice to have you all here. I appreciate this, and I
appreciate the lively debate that has taken place. I think the
debate about the First Amendment and the lurid descriptions of
how this is the first time in history Congress has tried to
amend the First Amendment does overlook a rather significant
fact in the room--indeed, the elephant in the room--which is
that five conservative activists sitting on the U.S. Supreme
Court for the first time decided that unlimited spending in
elections was A-OK. And in doing so, they departed dramatically
from the American people. Recent polling shows the Court in
unprecedented bad odor with the American people as a result of
that. The most damning polling information was from a recent
Melman poll that shows by 9:1--by 9:1--Americans believe that
this Supreme Court will favor corporations over individuals.
And I would suggest that there is plenty of evidence in the
Supreme Court's recent record, particularly the record of 5:4
decisions driven by the right-wing activists, to justify that
concern. I do not think you can get by 9:1 Americans to agree
that the sun rises in the east. So when they are concerned that
this Court will favor corporations over individuals in that
kind of number, I think that is a real warning shot across the
bow of this Court that they need to stop being activist and
start trying to find consensus and start trying to rebuild
this.
So if you omit the fact that five activist conservatives
for the first time kicked down hundreds of years of controls
over election spending and unleashed corporations, which are
not even mentioned in the Constitution or the Bill of Rights,
to spend unlimitedly in elections, you are omitting a
relatively salient fact from the discussion. And I think that
fact is really at the heart of this discussion. I see what we
are trying to do as to repair an erroneous decision by the
Supreme Court, a decision that is likely to end up in the
category of Lochner and Plessy as really embarrassing moments
in the history of a Court.
Let me make one additional point, and then I will ask
anybody who wishes to comment, point one being we are trying to
fix a Court that kind of went berserk by a narrow five
conservative judge margin and did so to massive benefit to the
corporate interests that in many cases actually backed those
judges getting on the Court.
The second point is that the decision overlooked some very
important factors. First of all, they got the whole business of
the transparency totally wrong, and they have not admitted that
they got it totally wrong, but it is undeniable that they got
it totally wrong because it is totally untransparent.
But another important thing that they overlooked is that
there is--I think I am correct in this, Mr. Abrams--a First
Amendment limit in this area that allows us to protect the
electoral process against fraud and against corruption. That is
well-established First Amendment doctrine, is it not?
Mr. Abrams. Yes.
Senator Whitehouse. Yes, and so in order to get around that
little problem on the way to unlimited corporate spending, they
had to pretend that unlimited corporate spending could not--not
just might not or probably would not--could not create any risk
of corruption in campaigns, because if it did, which it
obviously does, then Congress would have the right and ability
under the First Amendment--under the First Amendment--to
legislate in this area. And the thing that as a prosecutor I
have noticed--and it is not just me; Senator McCain and I wrote
a brief together to the Supreme Court that made precisely this
point, so it is a bipartisan point. If a corporation is allowed
to spend unlimited money, particularly if it is allowed to do
it anonymously, guess what? It is allowed by them to threaten
and to promise to spend unlimited money. And all the safeguards
that the Supreme Court said were going to be there about seeing
the ads up on the TV and knowing who was behind them and having
it add to the public debate falls to ashes when you are talking
about a corporate lobbyist going into a Member of Congress and
saying here is the ad we are going to play, we are going to put
$5 million behind it in your district unless you vote right.
And so the power to spend that kind of money is also the
power to threaten, and that power to threaten is the power to
corrupt. And that is a nexus that I think we have to remember,
and I will yield back my time.
Professor Raskin, would you care to comment?
Professor Raskin. Please. Thank you very much, Senator
Whitehouse. There are several points I would like to make.
One is that the Citizens United decision overthrew
essentially two centuries of understanding of what a
corporation is. If you go back to 1819, Chief Justice John
Marshall, the great conservative Justice, said in the Dartmouth
College case, that a corporation is an artificial entity,
invisible, intangible, existing only in contemplation of law,
and possessing only the rights that the State legislature
confers upon it through the charter. Because of that, for more
than a half century we have forbidden corporations----
Senator Whitehouse. Which was also the understanding of the
Founding Fathers, correct?
Professor Raskin. Well, there were very few corporations
and they were on an extremely short leash, and you can find
lots of quotations from Thomas Jefferson who said we have got
to keep them on a short leash because something that Justice
White ended up saying might happen. Justice White said in First
National Bank of Boston v. Bellotti, the State has created the
corporation and the State need not permit its own creation to
consume it. But, of course, they have made that the law in
Citizens United.
But in the Austin v. Michigan Chamber of Commerce case and
in the McConnell v. FEC decision, the Supreme Court said, of
course, the Government can keep corporate money from flowing
into political campaigns on an independent expenditure basis
because this is money that is in there for economic purposes.
The reason why McDonald's has billions of dollars is because
you eat their hamburgers, not because you agree with their
politics. And so Justice Marshall, Thurgood Marshall, noted
that there was a distinct corrupting effect in taking that
money assembled for economic purposes through lots of State-
conferred advantages--perpetual life, limited liability of the
shareholders, favorable treatment of the assets of the
company--and using it to entrench the political power of the
corporation. This goes all the way back for two centuries, this
understanding of why the corporation has got to be confined to
the economic realm.
And the Court did say--and I wish Senator Hatch were still
here, because he said that I was somehow unfair in taking a
case that was just about a not-for-profit's use of a movie and
saying that it applies to all of the political spending by
private corporations in America. I agree it is unfair, but it
was not my decision. That was the decision of the Supreme
Court. When the case came to the Supreme Court, there was a
very simple claim made by the Citizens United group, which I
think they should have won on. It was a statutory claim, and
they said what we have got is a pay-per-view, pay-on-demand
movie that we are putting up there. It is not like a 30-second
attack ad that everybody has got to see. We do not think that
comes within the prohibition of McCain-Feingold. The plaintiffs
could have won and they should have won on that point.
They also could have won because even if you
counterintuitively view it as a TV ad, 50,000 people would have
had to see it. They would have been lucky to have had 500
people watch their movie, right?
So there were lots of statutory ways to solve this case,
and Chief Justice Roberts, who said he was committed to
judicial minimalism and the canon of constitutional avoidance,
a central principle of constitutional adjudication, which is
you do not reach a constitutional issue if there is a better
statutory way of coming out in the same way, they destroyed the
canon of constitutional avoidance for the purposes of Citizens
United in that case. They rushed over five different ways that
they could have found for the not-for-profit group in order to
give the parties the command to go back and reargue the case
based on all corporations everywhere at all times.
So when the Supreme Court came back and said all
corporations have a First Amendment right to spend money in
politics, that was way beyond what they were being asked to do
originally, and it depended on reargument and rebriefing in the
case. This was pure judicial activism.
Let me just say one other thing, which is a series of
questions have been posed to the other side about whether they
have an absolutist perspective on the First Amendment in terms
of child pornography and libel and defamation and so on, and I
would be curious on Mr. Abrams' take on that. But I think there
are more direct questions that need to be asked, because what
we see is a tremendous momentum on the Court and the people
bringing these cases to strike down all campaign finance law,
all of it, including the Tillman Act, going back to 1907. I
think I saw an interview with Mr. Abrams where he agreed that
contribution limits should be abolished. I think he would take
the position, that since contribution limits should be lifted,
and since corporations have now been transformed into citizens,
they should also be able to give money directly to candidate
campaigns, so as to abolish a century of practice of saying
that there is a wall of separation between corporate
contribution money and Federal political campaigns.
So what we are facing is the complete wipeout of campaign
finance law if they have got the courage of their convictions.
If Senator Cruz is right, which is that money is just speech,
then you have got to let it flow entirely. And I would be
curious at what point they stop.
Mr. Abrams. Could I respond?
Senator Whitehouse. Mr. Abrams, go ahead.
Mr. Abrams. These issues have been with us a long time. The
Court did not make this stuff up in Citizens United. Harry
Truman vetoed in 1947 the Taft-Hartley bill, which was the
first bill that imposed limits on expenditures. He vetoed it
and said that a reason for vetoing it was it violated the First
Amendment, the very sort of issue that your constitutional
amendment would be passing on. The constitutional amendment
that is before you is one which would not just reverse, as it
were, Citizens United but the Buckley case as well. So we are
going back, and we are not just talking about conservative
jurists. We are talking about Justice Brennan, we are talking
about Justice Marshall, we are talking about Justice Stewart,
all of whom----
Senator Whitehouse. None of them signed off on Citizens
United.
Mr. Abrams. No, but all of them signed off on the
proposition that independent expenditures could not be limited.
That is what Buckley was about. Citizens United was not about
contributions. Citizens United moved from Buckley, which dealt
with independent expenditures, to the independent expenditures
of corporations--and unions, by the way, who have yet to be
mentioned here today. But my point is simply that there has
been a philosophical disagreement about this for many years
with many Justices on the Supreme Court taking different
positions so that this is--I really do not think----
Senator Whitehouse. But through it all, through it all, the
laws of the United States have limited contributions in Federal
elections.
Mr. Abrams. And they still do.
Senator Whitehouse. But in very important ways they do not.
The idea that Citizens United did not change anything runs
contrary to everybody's experience who is involved in politics.
We see all around us how it has changed anything. You cannot
just say it is part of an ongoing debate. It is a huge
inflection point in the way in which democracy operates in this
country. Look at the super PACs out there.
I see other Senators here, and I have used more than my
time. So I will----
Mr. McKissick. If I could comment briefly on that issue?
Senator Durbin. Senator.
Mr. McKissick. And I am an attorney, but obviously I am not
an expert on First Amendment/free speech issues. But I can say
that really as a practical reality, Citizens United has
profoundly changed the landscape. I look at this recent May
primary involving our State Supreme Court Justice Robin Hudson.
These entities have gone in there with their dark money, spent
over $1 million to disproportionately impact the outcome of
that race, to taint that Supreme Court Justice in a way that
was unlike anything we have ever seen. And the only thing it is
going to take is one race after another race after another
race. In North Carolina, the control of that Supreme Court is
at stake right now. And why is it a very significant issue?
Because these laws that have been enacted in our State that
superior court judges are determining to be unconstitutional
will ultimately end up there. And if you can use these dark
money fund to go in there and start changing the balance on a
Supreme Court in our State, it can be done in any State. Should
there be reasonable limitations? In my mind, it is absolutely
imperative that we do so; otherwise, this disproportional
impact that can come from people who are millionaires and
billionaires to control the way decisions are made through our
legislatures and our courts is--we are opening up a floodgate
to change that is going to have a very negative impact on our
political process and the rights of individuals.
Senator Durbin. I am going to recognize Senator Cruz. I
think Senator Hatch has already asked. I will recognize Senator
Cruz and ask Senator Franken if he would come up here and
preside while I go vote.
Senator Franken [presiding]. Sure.
Senator Cruz. Thank you, Mr. Chairman.
At the outset I would like to say I understand that in my
absence Senator Schumer very kindly gave a lecture on civility
and encouraged me not to go over the top while he then in the
same breath accused me of supporting child pornography. So I
appreciate that demonstration in senatorial restraint from the
senior Senator from New York.
Let me say to the members of this panel, welcome. Thank you
for joining us. Let me in particular welcome Floyd Abrams. Mr.
Abrams, you have been a lion of the First Amendment.
Mr. Abrams. Thank you.
Senator Cruz. And I have admired your career pretty much
all my life, the passion with which you have defended the First
Amendment against assaults from members of your own party and
pretty much anyone else, so I appreciate your being here.
Mr. Abrams. Thank you.
Senator Cruz. I do wish there were Democratic Senators
willing to defend the First Amendment. In our history,
Democrats have been willing to do that, and we are in a strange
point in time when Democrats abandon the First Amendment and,
indeed, propose repealing it.
I want to address three canards that are put forth in
support of this constitutional amendment.
Number one, this is all about nefarious billionaires. You
know, it is interesting, if you look at the Open Secrets
website, which I would note is a nonpartisan group, the top 16
donors to campaigns from 1989 to 2014, 100 percent of them
support predominantly Democrats who are on the fence. The top
three donors are Act Blue, which has spent over $102 million;
the American Federation of State, County, and Municipal
Employees, which has spent over $61 million; and the National
Education Association, which has spent over $58 million. Those
are the top three. Koch Industries, who we have heard so much
about, they are number 59.
You know, there is a pattern in politics where, when
Government is trying to take the liberty of the citizens away,
they try to distract them with shiny objects. So we have seen
the Majority Leader repeatedly slandering two private citizens,
the Koch brothers, on the floor of the Senate.
There is a rule in the Senate that when one Senator attacks
and impugns the character of another Senator, you can rise on a
point of personal privilege. And I would note there is
unfortunately no rule in the Senate that allows a private
citizen whose name is being dragged through the mud by the
Majority Leader of the Senate for partisan political purposes
to rise on that same point of personal privilege.
The second canard that is put forth is money is not speech.
That has been repeated over and over again in this hearing. I
would note any first-year law student who put that as his or
her answer on an exam would receive an F because it is
obviously demonstrably false, and it has been false from the
dawn of the Republic. Speech is not just standing on a soapbox
screaming on the sidewalk. From the beginning of the Republic,
the expenditure of money has been integral to speech. The
Supreme Court has said that pamphlets, The Federalist Papers,
and Thomas Payne's ``Common Sense'' took money to print and
distribute, putting up yard signs, putting up bumper stickers,
putting up billboards, launching a website--every one of those
requires the expenditure of money. I guarantee you every person
in this room, if you think about it, disagrees with the
proposition that expending money is not speech. Publishing a
book is speech. Publishing a movie is speech. Blogging is
speech. Every form of effective speech in our modern society
requires the expenditure of money from citizens.
The third canard is that corporations have no rights. That
gets repeated an awful lot. Again, you would get an F in law
school if you embraced that position.
The New York Times is a corporation. CBS is a corporation.
Paramount Pictures and Simon & Shuster are corporations. The
Sierra Club is a corporation. The NRA is a corporation. The
NAACP is a corporation. La Raza is a corporation. None of the
people who say corporations have no rights would possibly
suggest that, well, Congress can then prevent the NAACP from
speaking, can prevent La Raza from speaking, can muzzle the New
York Times. That position is obviously false.
Nobody has disagreed with the litany of harms that could
occur if Congress passed this bill, the ability to muzzle
citizens, to muzzle labor unions from organizing because that
is an in-kind expenditure, the ability to silence bloggers.
Now, I have today introduced two amendments to protect the
free speech rights of Americans. The first is entitled, ``The
Super PAC Elimination Act of 2014.'' What this bill will do is,
number one, eliminate campaign limits on individual
contributions to Federal candidates. Right now the current
system we have is stupid. You have got super PACs spending on
the side, out of the control of campaigns, and it has grown
because Congress has attempted to regulate and silence speech.
The bill I have introduced would eliminate the individual
contribution limits and provide immediate disclosure within 24
hours of any contribution made to a Federal candidate.
What that would do as a practical matter is make it all
transparent and make super PACs irrelevant. A number of States
have systems like this, and it works quite well.
The second bill that I have introduced today is the Free
Speech for All Act. We have heard over and over again
corporations are not people. What this bill says is very
simple: Any restrictions on the rights, the free speech rights
of citizens shall apply with equal force to media corporations
like the New York Times, CBS, ABC, and NBC. That is provision
one. And provision two simply says, to the extent any
restriction is found unconstitutional as applied to that media
corporation, it shall also be deemed invalid as applied to an
individual citizen.
So if everyone who is arguing corporations are not people,
I hope and expect all the Democrats to happily cosponsor this
bill, because it says an individual citizen is at a minimum
entitled to the same First Amendment protection that we give to
these giant media corporations. It is free speech for all. We
should be defending the Bill of Rights, not debating, amending,
and repealing the free speech protections of the Bill of
Rights.
Thank you, Mr. Chairman.
Senator Franken. Thank you. I will recognize myself--or
have you questioned yet?
Senator Klobuchar. No.
Senator Franken. Okay. Senator Klobuchar is our senior
Senator and, therefore, gets to ask questions before I do.
Senator Klobuchar. Thank you very much. Thank you, Chairman
Franken, and thank you so much to the witnesses for being here.
I was actually in North Carolina, Mr. McKissick, and was
able to speak at the Frye-Hunt Dinner and see ``Meet your first
African American Justice,'' and also former Governor Hunt, and
also hear about all the things that you have talked about today
in terms of the effect of the big money in North Carolina and
some of the policies that we have seen. And what was of
particular concern to me was getting rid of the same-day
registration, something that has put Minnesota at the top of
voter turnout time and time again, whether we elected Tim
Pawlenty, a Republican, or Governor Dayton, a Democrat, or
Jesse Ventura, an Independent. The fact that we have people
participate matters, and the fact that that has been cut back
on in North Carolina matters a lot.
And I was interested hearing Mr. Abrams talk about how this
should not be about bad policies, and I would agree. But I
think what we are trying to get at here is that there is a line
here between what is corruption and what is not corruption and
what this leads to that I do not think was defined in the
Supreme Court case, and I think for me is really the basis for
why we have to look at this constitutional amendment.
I do not think anyone takes the idea of a proposed 28th
Amendment in the Constitution lightly, but we know there have
been times in our history where Congress has needed to act to
restore our understanding of the constitutional rights of
everyday people, and everyday people are getting drowned out.
In the past, the Supreme Court ruled that women did not
have the right to vote. We responded with the 19th Amendment.
After the Dred Scott decision, Congress responded by passing
the Civil War Amendments. After the Supreme Court recent
decisions about money in politics, we have been working on
disclosure bills. But I have come to the conclusion and feel
very strongly that those disclosure bills are important, and I
appreciate you do not see them as unconstitutional, Mr. Abrams.
But they are not going to fix this. They are not going to fix
the fact that what I have seen in my State, where we used to
have limits before these decisions, and still some of them are
in place, that allowed someone like Jesse Ventura to run a
campaign without having tons of money spent in and brought in
from out of State that was undisclosed, that came as a result
of that Citizens United decision.
My first elections I ran in, the maximum was $500 for a
local office. It allowed someone like me that had a third of
the money of my opponent to still win an election. Otherwise,
it would have been unlimited, and I know I never would have
won, because as it was, my opponent ran all her ads on network.
I could only run on a very, very few local cable stations with
a black-and-white ad because of money. And I won by two votes
per precincts. So I know this story.
I want to start out with a question of you, actually, Mr.
Raskin, Professor Raskin, about the major shifts you have seen
since the Citizens United and how you see this trend is
continuing in the future.
Professor Raskin. Thank you. Well, others have spoken about
the deluge of money which has overtaken our politics. The
Washington Post had a good piece on this showing how in 2006,
before Citizens United, there was $25 million in outside
expenditures; in 2010, after the decision, there was $250
million; and in 2012, it was over $1 billion. And we are on
pace to exceed that.
But the thing that I want us to focus on here is that there
is a free market ideology which is animating the Justices on
the Court, and I think this also infuses Mr. Abrams' testimony,
and it will threaten to wipe out all of the campaign finance
laws we have got.
I would be curious to know, do they think we should have
limits on contributions? Or is that an unacceptable violation
of people's speech? Should we continue to have the Tillman Act
since 1907 which bans corporate contributions to people running
for Federal office? Or is that an unacceptable violation on the
freedom of speech----
Senator Klobuchar. I think that is a good question to ask
Mr. Abrams. You said, Mr. Abrams, that you supported disclosure
laws when I was here when Senator Schumer asked that question.
Do you support any other limits on campaign contributions such
as the ones that Professor Raskin just mentioned?
Mr. Abrams. I have pretty well come to the conclusion that
contribution limits as well ought to fall. I think they should
be disclosed, but it seems to me that we have reached a point
both in our jurisprudence and our politics where if we know
what the money is and where the money is coming from, I think
we can trust the public to make a rational decision. And where
they do not make that decision, I think that we are constantly
unnecessarily going through a cost-benefit analysis in terms of
there is cost with speech. Speech does not do only good things.
It is a good thing that we protect speech, but speech does some
harm sometimes, and maybe the impact of having more speech paid
for by fewer people will sometimes be harmful. But my view is
that at the end of the day I think for myself that contribution
limits as well probably should fall.
Senator Klobuchar. Mr. Raskin, do you want to----
Professor Raskin. I am taking it since he thinks that
corporations should have the same rights as the people that
corporations should also be able to give on an unlimited basis
to every Member of Congress. This is where I think we are
going. We have one philosophy which says that money should be
treated like speech, corporations like people, and let the free
market reign. We have another which tries to adhere to what I
think is the American political tradition, which is that within
the electoral realm, within the political realm, we try to
maintain some rough approximation of political equality based
on the core idea of one person, one vote.
I appreciate Mr. Abrams' candor because that is certainly
where all the litigators on that side are going. That is where
at least four Justices are going. But let me just say there is
one Supreme Court decision which gives me a little bit of hope
if people would pay attention to it. It came the year before
Citizens United. It is called Caperton v. Massey, a 2009 case
from West Virginia, a fascinating case where the CEO of the
Massey Coal Mine Corporation had litigation against him and the
company going, and they were losing all the way up. So he
decided to get involved in the election for the West Virginia
Supreme Court, and he threw everything he had into a candidate,
who later became Justice Benjamin. He gave the $1,000
contribution that he could give. Then he gave $2.5 million to a
conveniently created and named not-for-profit entity called
``For the Sake of the Kids.'' So $2.5 million went to For the
Sake of the Kids. Then he spent another half million out of his
own pocket on his own independent spending.
When that happened, the money he spent on his favorite
candidate drowned out everybody else. It was more money than
everybody else gave put together by a huge factor. Benjamin won
the election, he gets in, and he serves on the Supreme Court
panel reviewing the case. And what do you know? They reverse
the verdict 3-2 against the corporation, against the Massey
Company.
Well, that goes all the way to the U.S. Supreme Court, and
that was too much not for the four Justices, Scalia, Alito,
Roberts, and Thomas. They thought that there was no problem
with it. But Justice Kennedy flipped over, joined the liberals
there, and said, okay, that does compromise at least the
appearance of due process, so we are going to send that one
back and say that the judge should not have sat on the case.
Now, what is fascinating to me about it is the next year,
we had the coal mine collapse from the Massey Company; 29
people died. The Governor issued a report and said that one of
the factors in what happened was the failure of politicians to
try to zealously enforce the laws and the regulations against
the Massey Corporation because they were afraid of the
political spending and the willingness to engage in independent
expenditures of the CEO.
Senator Klobuchar. Okay. Thank you, Professor Raskin. I
think that I will have to look at that case. I have heard about
it, and it is just one example, that story, of what has been
going on. And I think your argument about the corruption and
what this is leading to is of great merit. And I would also say
that I am glad that you have come out there--Mr. Abrams said
this. I mean, basically under this scenario, we would have no
rules, we would have no limits on contributions, no limits on
corporate contributions. And I just see more of the same. And I
do not think this is what our Founding Fathers wanted.
Senator Franken. Senator Sessions.
Senator Sessions. Thank you. Thank you all. It is an
interesting and important panel and discussion.
When I came here, I felt a bit aggrieved. I had some
opponents who had opposed me and spent millions of dollars. I
did not have any money, but I was able to win. But I had some
grievances. But, you know, as I looked at this, I asked myself
a very simple question, 3 months into my tenure when this
constitutional amendment was first brought forth, and the
question was: At a fundamental level, do we want to pass an
amendment to the Constitution that allows the Government of the
United States to tell an American citizen or business they
cannot run an ad and say, ``Jeff Sessions is a skunk and ought
to be voted out of office''? Or are they not able to advance
their view that coal is good or coal is bad? Is America going
to benefit if we constrict that right? Isn't that contrary to
the First Amendment? I suggest it is because we have an
amendment to amend the First Amendment, and I do not think the
Supreme Court took any extreme position. I think the Supreme
Court fundamentally interpreted the Constitution as it is
written.
And with regard to that first constitutional proposal or
amendment in 1997, it failed 38-61. Only 38 voted for it. And
then when it came back in 2010, it failed 40-56, all well below
any prospect of becoming a passage.
And it seems to me, Mr. Abrams, that this amendment would
go further. Those amendments set reasonable limits which would
at least given the Supreme Court, or five members thereof, some
ability to constrict congressional power. Do you interpret this
as giving almost carte blanche to the Congress to limit
spending?
Mr. Abrams. Yes, I think it does just that, and I think
that the Supreme Court itself would read it that way. And if a
litigant go up in court and said but, look, this is really
unreasonable, you cannot have a $500 limit, one case out of
Vermont, just a few hundred dollars, which the Court struck
down, another case which this amendment would overrule, the
Court struck it down just saying that is just not enough money
to run a campaign. I do not think that would be at all the
same.
I mean, under this amendment the State legislatures and the
Congress would have, I believe, all but absolute authority to
make these decisions and would be essentially unreviewable and
certainly not reviewable on a reasonableness basis.
Senator Sessions. So you could not go to the Supreme Court
and say we think this is an unreasonable limit because the
Supreme Court would say you did not put that test in it; in
fact, you explicitly passed this amendment after having
rejected that word that was in a previous draft. I just think
that is one of the things we need to recognize.
Mr. Abrams, one more thing. I do not know if you have
commented on this, but the dissent, four votes, said that the
public interest in preserving a democratic order in which
collective speech matters, does that cause any unease? Should
we be concerned? Some people have expressed concern. Do you
share that----
Mr. Abrams. Well, I have expressed concern in writing about
that. That is Justice Breyer's dissent, and, you know, my view
is that the First Amendment is about protecting the
individual's right. And it is not a collective right, and it is
not to be interpreted in terms of in legal terms of everybody
being able to work out social problems, which is a good thing,
but not a First Amendment concern. The First Amendment concern
is protecting the public from the Government.
Senator Sessions. Well, I just left simultaneously with
this an Environment Committee hearing in which one of the
witnesses, a professor, said he was severely damaged as a
result of his questioning of some of the global warming
arguments that are made out there. I think we are in a period
of time when speech is being threatened more than we would like
to admit. Political correctness has often run amuck, and it is
fundamental that Americans be able to express their views
without intimidation.
I think the great Democratic Party that was so classically
liberal is now becoming the party of the progressives, and
progressives tend to believe that little things like tradition,
procedures, rules, even sometimes I think honesty can be
subjected to the agenda that they believe is best for America.
And I am telling you, I think this is serious. And I feel it
repeatedly in our country and in the debate that we are engaged
in. I just think tradition and constitutional order should be
respected, and in the long run we will be better off that we do
not try to muzzle somebody who happens to have money and to
keep him or her or this business from being able to express
views that they think are important to the public and maybe
even their own interest.
Thank you, Mr. Chairman.
Senator Franken. Thank you. I am going to recognize myself.
I think I just heard----
Senator Sessions. Are you sure you recognize yourself?
Senator Franken. I do. If I look in the mirror, I recognize
myself.
[Laughter.]
Senator Franken. And I recognize myself here.
Senator Sessions. I knew you would handle that deftly, and
you did.
Senator Franken. Thank you, and so did you.
[Laughter.]
Senator Franken. It is good to see you, Mr. Abrams. You
actually defended me on a First Amendment case.
Mr. Abrams. So I did.
Senator Franken. And you won. It was a brilliant----
Mr. Abrams. Thank you. I remember what you said to me after
I won.
Senator Franken. What did I say?
Mr. Abrams. ``Even a chimp could have won that case.''
[Laughter.]
Senator Franken. And I was right.
[Laughter.]
Senator Franken. But you are a brilliant lawyer. And I
noticed that in your testimony, in your written testimony--and,
Professor Raskin, I want you to speak to this. Mr. Abrams says
that it ``appears'' that Citizens United has not caused a flood
of new money in politics. He says it twice, actually. He uses
the word twice. It ``appears'' that way.
Now, from my experience, I know Mr. Abrams is an excellent
lawyer, so I know he chooses his words carefully when he says
that it appears that way because there is really no way that we
know. There is really no way that we know. And Mr. Abrams
himself has said that he is for getting rid of all limits
entirely. And we are talking about intimidation about speech.
Suppose a corporation comes up--and there are no limits--and
says to a Senator, ``If you vote this way on this bill, we will
spend $100 million to defeat you.'' It is fine. Isn't that
fine? I mean, according to this logic----
Professor Raskin. Yes, but that is just free speech. Look,
on the empirical question, let me just say this----
Senator Franken. No, no. Then they need to put the $100
million in or not. They do not even have to put it in to
intimidate you.
Professor Raskin. That is right. The numbers that I have
seen have gone up dramatically, and for the numbers that we
have not seen, the 501(c)(4)'s, the social welfare groups, the
(c)(6)'s, the trade associations, the dark money, the estimates
run into the billions. But I do not even know why Mr. Abrams
would bother to deny it. On his perspective that is just more
speech, and that is something terrific.
Now, that is at odds with, I think, the people who are
actually involved in politics, what they think is going on out
there. And I think that, you know, the Senator from North
Carolina has a much better sense of what this money actually
means, you know, on the ground when it gets spent.
It seems to me that before we go any further, we have got
to ask ourselves the question: Do we want to completely
deregulate money? Because that is where the Court is going,
that is where the litigators are going, that is where all the
political argumentation is. Or do we think that there should be
a structure in place?
The position that they are committed to is one where the
people will have no say over it; that is, as a matter of First
Amendment law, despite the fact that the people who wrote the
First Amendment did not know anything about super PACs, dark
money, or $1 billion bailouts. In fact, on their campaigns they
basically spent nothing. They stood for office. They did not go
out and spend any money. They did not do it.
So in the name of the Founders, they are going to give us a
completely unregulated political finance system, far more
extreme than any other democratic nation on Earth, and then
take away from the people the right to have any say over it.
Senator Franken. Now, Senator Cruz talked about, you know,
media companies like the New York times or Fox News or
whatever. When there is an editorial in the New York Times, it
is in the New York Times. It is disclosing. So, I mean, we had
a vote on disclosure. We had not one Republican join us on
disclosure. And, Mr. Abrams, you said that you are for
unlimited contributions, but you would prefer to see
disclosure. But we are not going to see that if you have to get
60 votes to do that.
So here is the key quote to me in Citizens United opinion,
the majority opinion by Justice Kennedy: We now conclude that
``independence expenditures, including those made by
corporations, do not give rise to corruption or the appearance
of corruption.'' That is just to me horribly outside of--that
is out of touch with reality.
The Minnesota League of Women Voters--the Minnesota League
of Women Voters, it is, like, you know, on a trust level with
the Visiting Nurses Society. I mean, they issued a report in
which it concluded that, ``the influence of money in politics
represents a dangerous threat to the health of our democracy in
Minnesota and nationally.''
I agree with that. I know Senator McKissick agrees with
that. What do you think of the Court's analysis, Justice
Kennedy's analysis on this point, Professor Raskin?
Professor Raskin. Well, I think it contradicts----
Senator Franken. Is it too narrow? Is it too narrow a view?
Professor Raskin. Okay. It is a far too narrow view that
contradicts both what the Court has said before and what
Justice Kennedy said in the Massey decision, Caperton v.
Massey.
Now, in Buckley v. Valeo, the Court said that we could
regulate not just in the interest of combating quid pro quo
corruption, something like a bribe, but also the reality, the
appearance of improper influence and undue influence, and there
is a whole sequence of Supreme Court decisions that follow in
its train to say that the people understand, and legitimately
so, that corruption can go far beyond just a narrow quid pro
quo.
If you go back to Caperton v. Massey, Justice Kennedy
joined the moderate-liberal Justices in saying that we are
going to take that verdict away from the Massey Corporation
precisely because of an independent expenditure that was spent
in that way. And, by the way, Justice Kennedy in his decision
in Massey v. Caperton, refers to independent expenditures as
``contributions.'' I mean, for him they are so closely
connected that he calls them ``contributions'' in the first
paragraph of the decision.
So I think that it cuts against logic and common sense and
what the Court has always said before.
Senator Franken. Thank you very much. And I will hand both
the microphone and the gavel over to Senator Coons.
Senator Coons [presiding]. Thank you, Senator Franken, and
thank you to our panel and to all who participated today.
Like many of my colleagues, I have been deeply disturbed by
legal developments over the past few years and by what I think
were the inevitable consequences of those decisions,
particularly with regard to unrestricted campaign spending. As
Professor Raskin just commented, Buckley v. Valeo established a
principled framework for evaluating how and to what extent
spending might be fairly characterized as speech and,
therefore, entitled to protection under the Constitution and
when it might be appropriately restrained.
Recent decisions, however, have lost all sight of that
balance and of the importance of that balance and of the
consequences of destroying that balance. And in my view, the
recent Supreme Court majority opinions seem singularly focused
on whether a specific person's or corporation's intended giving
constitutes quid pro quo corruption while failing to consider
other forms of corruption that are corrosive of our political
order, that undermine public confidence, and that distract the
deliberative workings of legislative bodies at all levels. And
the cumulative impact of money, particularly secret money and
big money in politics, I think is very negative, and we need to
work in a bipartisan way to find a responsible solution to this
challenge. If you look at the trajectory of recent decisions, I
think we are just one or two decisions away from the removal of
all limitations whatsoever.
So if I could, first, Senator McKissick, I just would be
interested in your comments on what the elimination of
restrictions presented through Citizens United, what has the
impact of that been on your district, on politics in North
Carolina, on campaigns using North Carolina as an example? In
Austin v. Michigan Chamber of Commerce, some years ago, the
Supreme Court held Congress' interest in ensuring that
expenditures that reflect actual public support for political
ideas espoused by corporations justified a prohibition on
political spending by corporations. They were concerned that
corporations not be able to drown out the actual free speech
rights of real living people. Post-Citizens United, what has
the ground been like in North Carolina and what have the
consequences been?
Mr. McKissick. The consequences have been grave, to say the
least, and what you really have unleashed is the capacity for
these independent expenditure organizations to come in, some of
which are based in North Carolina, many of which are based
outside of North Carolina, they are having an impact on our
council of State races, our legislative races, judicial races,
you name it. And what you really see is simply a barrage of
negative ads that are run literally around the clock that
disproportionately highlight some specific issue that they
think is narrowly based, but the design of these commercials,
all of these barrage of commercials, it is simply to elicit an
emotional response upon persuadable voters. And unfortunately
at times it is doing so. It is having exactly that impact.
So, I mean, you find that perhaps these deep-pocket
corporate donors, whether they are millionaires or they are
coming from outside of the State, perhaps even billionaires on
occasion, they have a vested self-interest. Many of them are
highly conservative. Many of them do not perhaps share the
mainstream perspective of the vast majority of North Carolina
voters. I am not going to tell you that North Carolina is a
progressive State. I am not going to tell you it is a
conservative State. I am going to tell you it is basically a
centrist State. But when you have a centrist State with voters
that are centrist in perspective frequently, and you can see
this massive amount of spending that is in some situations is
three, four, five times the amount of money that individual
candidates can put toward an issue or their campaigns, you see
distorted outcomes--distorted outcomes across the board.
Senator Coons. Thank you, Senator. Thank you for that
experience-based testimony about the impact of this flood of
money on elections in North Carolina.
Professor Raskin, if I might turn to you, I have a limited
amount of time left. Mr. Abrams referenced that the First
Amendment is an individual right that is protected, a right to
free speech that is embedded in our First Amendment. Is it true
that money equals speech in the context of the current majority
in the Supreme Court in recent decisions? And what grounding do
you think there is in the text of the Constitution for
extending that right to corporations equally with individuals?
And what is the consequence?
Professor Raskin. I think everybody would agree or should
agree that money is not speech. Money can be a courier of
speech. It can amplify speech. Furthermore, because the First
Amendment right is an individual right and not a collective
right, that is why the Supreme Court had always said up until
Citizens United that corporations as artificial entities
chartered by the State governments do not have the First
Amendment rights of the people. As Justice Stevens put it,
``Corporations do not have consciences, beliefs, feelings,
thoughts, desires.''
And so there are three basic rationales for why we have a
First Amendment. One is so people can express themselves. That
obviously does not apply to a corporate entity. Two is for
democratic self-government so that citizens can govern
themselves. But we certainly do not allow foreign governments
or foreign corporations and we did not allow our corporations
to take over that process. And the third is the search for the
truth. But corporations are not interested in the truth.
Corporations are interested in profit, as they should be, and
our economy has been fantastically productive organizing it
that way. To bring the press into it just confuses the issue
because we have a whole separate clause that defends freedom of
the press, and they have never been regulated under our
campaign finance laws and never would be. And they certainly
would not be under the constitutional amendment that is being
suggested today.
Senator Coons. Thank you, Professor. Thank you to the
panel.
I will now defer to Senator Blumenthal.
Senator Blumenthal [presiding]. Good afternoon. I am going
to take over the gavel. I am the latest and very likely the
last of the Chairmen that you will have today. And I am going
to ask Senator Hirono, who was before me in the line of
questioning to go ahead.
Senator Hirono. Thank you, Mr. Chairman.
The current Supreme Court is one of the most corporate-
friendly Courts in history. Rulings like Citizens United and
others have expanded the rights of corporations significantly
in a variety of areas that undermine our democracy.
Mr. Chairman, I would like to enter into the record a 2013
New York Times article that reports on this troubling trend
entitled, ``Corporations Find a Friend in the Supreme Court.''
Senator Blumenthal. Without objection.
[The article appears as a submission for the record.]
Senator Hirono. I would also like to enter into the record
an April 2, 2014, editorial from the Charlotte Observer
entitled, ``Another window to corruption; Our View,'' talking
about the Supreme Court's continuing on its path to dismantle
the country's campaign finance laws.
Senator Blumenthal. Without objection.
[The editorial appears as a submission for the record.]
Senator Hirono. Senator McKissick, you described for us the
post-Citizens United situation in North Carolina, and we have
heard testimony today that the next step, because the Court is
on the path of saying that constitutional rights are at stake
in these decisions, the path of eliminating individual
contribution limits. Now, would you describe for us what you
think would happen in that instance? Because I think there is
agreement that is the next Supreme Court campaign spending
decision coming down the line.
Mr. McKissick. Well, Senator, that certainly appears the
way the Supreme Court is drifting. I think it would be
certainly the wrong direction for this country to move at this
point in time. I mean, it is bad enough that you have unlimited
corporate contributions coming in today that did not exist
before. The worst possible thing that could happen is if you
also eliminated these limitations on individual giving. What
you would essentially do is distort the whole playing field.
And when I say that, right now, whether those contributions are
$4,000 or $5,000, let us say, in a State race in North
Carolina, if you eliminate that cap, those individuals that
want to give $25,000, $50,000, $100,000 assure that their
policy, their view, their perspective is actually the
perspective that wins the day before our General Assembly, that
the laws are adopted that protect those potential contributors'
interests. When you really think about it, it undermines the
integrity of our whole system.
Senator Hirono. Well, these decisions, the Citizens United
and the McCutcheon decisions, basically did not touch the
individual--the contributions of individuals.
Mr. McKissick. That is correct.
Senator Hirono. Now, so there is kind of a little barrier.
But when one can contribute in an unfettered way to individual
candidates, that is you, that is all of us.
Professor Raskin, do you think that that is the kind of
undue influence that led States and the Federal Government to
pass campaign spending laws in the first place?
Professor Raskin. I think you are absolutely right,
Senator. You know, first of all, on your first point about
corporations, I did a report for people for the American Way,
the session after Citizens United, to situate it in precisely
the context you identify, which is an aggressive pro-corporate
jurisprudence on the Court. And in that term of the Supreme
Court, corporations won against shareholders, they won against
workers, they won against consumers, they won against
Government regulators. They won essentially every case that
they had going on in the Supreme Court.
But the idea of undue influence and improper influence has
now been taken away from Congress and the States as a
legitimate rationale for regulating contributions, and the
McCutcheon decision presses up very hard against the individual
contribution limit because the idea is you cannot limit what
people give overall, they should be able to give to everybody,
because aggregate limits are limiting the overall quantity of
speech.
Senator Hirono. Yes.
Professor Raskin. So does the regular contribution limit.
The regular base limit also ultimately reduces what the
candidate can spend, because if I could give you $1 million
instead of $5,000, you could spend to the heavens. We have just
deprived you of $995,000 to spend.
Senator Hirono. I think that I share the concerns that you
express about unfettered giving to individuals, and I think
that that does raise the undue influence concern that the
people of America already have with regard to what goes on in
the political arena.
So with these decisions and the next decision, I have no
doubt, I have very little doubt that Senator Coons is correct
and Mr. Abrams acknowledged that the lifting of those
individual contribution limits will be next. I think that is a
huge concern, which is why I believe we need to move ahead with
this constitutional amendment bill.
Now, I think there is also agreement that we can put the
reasonableness standard into this bill so that the States and
the Federal Government do not go hog wild.
In addition, the Supreme Court--I am running out of time,
but they set up a standard that is probably impossible, which
is that the only way that we can enact legislation in this
area, aside from disclosure, would be that we have to prevent a
quid pro quo, basically bribery, which is already illegal. So
basically the Supreme Court is saying, would you agree,
Professor, well, aside from disclosure you all cannot do
anything about what the Supreme Court is saying?
Professor Raskin. I think that is absolutely right. And, by
the way, the same people who brought us this line of decisions
are now attacking disclosure, not just legislatively, and we
know that there is a partisan divide on that. But, legally
speaking, they are saying this is unconstitutional compelled
speech under the First Amendment. It is like making the
Jehovah's Witness kids salute the flag. And they are insisting
there is a right to anonymous speech which makes disclosure
laws impermissible.
So look at the political realm that they want to give to
the American people. Corporations are treated like people. They
can give on an unlimited basis directly to candidates. They can
spend on an unlimited basis. And they do not have to tell
anybody. And then they whine if anybody even calls a
corporation out for doing it saying that somehow their First
Amendment rights are being violated. That is a pretty special
First Amendment they have got.
Senator Hirono. Thank you. I am out of time, Mr. Chairman.
Senator Blumenthal. I will be very brief. I want to begin
by saying to Mr. Abrams, I hope that when Senator Franken said
that a chimp could win that case, you doubled your fee to him.
[Laughter.]
Senator Blumenthal. And you and I have been on different
sides of cases, and I would never have----
Mr. Abrams. Yes.
Senator Blumenthal [continuing]. Referred to you as a
``chimp'' in your argument. Far from it. You have been a very
formidable and forceful advocate, as you have been today, and
thank you all for being here.
I want to take a slightly different line because I think a
lot of the ground has been covered, but from an institutional
standpoint--and I want to pose this question to Mr. Abrams
first, but any of you are free to comment. In its decisions,
and most recently McCutcheon, the Supreme Court makes certain
factual conclusions. For example, it says that the Government's
scenarios are ``implausible''--implausible factually to occur,
the scenarios used to justify its argument. It concludes that
technology offers a robust leavening sort of process to combat
some of the evils that are raised. And, you know, I have worked
for a Justice as a clerk. I have argued before the Court. I
have come to know some of the Justices. And one fact about them
has impressed me: They are enormously able, erudite, smart, and
caring people, but they generally are not well informed as to
the mechanics and the practical impacts because they have, by
and large, never run for office, never been involved in
campaigns, and many not even contributed to them.
Does it concern you--and I know they have to issue rulings
on a great many areas from patents to communications cases
where Internet--they may not be familiar with the details and
so forth, and that is their job. But in this area that so
vitally affects the fabric of our democracy and indeed their
being where they are, because they are in those positions
because of this system that they are now ruling on, are you
concerned with the institutional weaknesses of this process
that may lead them to reach conclusions that have huge
unintended consequences way beyond what they thought would
happening?
Mr. Abrams. I would like to answer that in two ways.
First, I think you are right that for members of the Court,
secluded as they are and certainly out of the political
mainstream, it is difficult, very difficult, difficult--the
patent example is a very good one, just as some other very
difficult areas of law where they have to reach to try to make
decisions about impact of something on the future which is very
hard to do, yes, that is a problem. I think it goes with the
territory; that is to say, I do not think they can avoid it.
My own view and my second point is I believe that instead
of characterizing as many members of this panel have, the
Court, as I would say, simply conservative or simply pro-
business, et cetera, I believe that the conservative members of
this Court have concluded that the First Amendment impact of
many campaign finance regulations are very real and very
severe; that is to say, from their perspective and mine, the
First Amendment side is really breached or at least threatened
very badly by some of the legislation that has appeared before
them.
Because of that, having reached that conclusion, I think
they deliberately strive to impose tests that will not allow
the First Amendment too easily to be overcome. And that is
where I think the notion, for example, that only quid pro quo
corruption is ``corruption'' for purposes of these cases. It is
not that they do not understand that there could be some impact
on the process or that money can be intimidating and necessary
for candidates. It is that I think that, having concluded that
the potential First Amendment harm is so great and that the
First Amendment risks are so real, they deliberately narrow the
legal test that they then apply that is necessary to overcome
it.
So I do not think it is that they are being unrealistic.
They may be wrong, as your question suggested, because they do
not have the background. That is something else. But what I am
saying is that they are doing it in the service, as they view
it, of the First Amendment.
Senator Blumenthal. I do not know whether anyone else had
any observations on that question.
Mr. Abrams. That is so incontestable.
[Laughter.]
Mr. McKissick. What I would say is, if I could be
recognized briefly, I recognize the direction the Court is
moving. I recognize that when the appropriate case comes, they
might just eliminate individual contribution limitations. But I
think what the Court has failed to do is to understand the
potential impact upon First Amendment rights and other
constitutional rights when you unleash the opportunity for
those who are the wealthiest in our society to buy elections
and to change outcomes. And there has to be a balancing of
competing interests. I think the proposed amendment, if it were
to go forward, and if it was passed by our States, it would
allow for that careful balancing of competing interests by
establishing in Congress the ability to have these reasonable
limitations, and likewise within the States. There has to be a
leveling of that fundamental playing field, because if it is
not, what will simply be unleashed is the ability of the
wealthiest in our society to dominate, control, and unduly
influence outcomes in our political process, our judicial
process, but, more importantly, the rights of those that may be
disenfranchised along the way, such as that occurred in North
Carolina through our voter suppression laws that have been
passed.
Senator Blumenthal. Let me ask, Mr. Abrams, and I apologize
if this question has been asked before, but can you imagine any
circumstances or scenarios where you would favor some kind of
limits on contributions?
Mr. Abrams. Yes, I mean, I do not have a firm view on
contributions. I was asked that question, and my answer was I
was sort of coming to the point where I thought that
contributions too would--probably ought to be over the line.
But that is not the most considered, certainly not final
opinion on my part.
Now, I can see a distinction between contributions and
expenditures, and I think that the Buckley case offered a
perfectly rational and defensible compromise in treating
expenditures differently than contributions. I do think,
though, that if in this session or, you know, some later
session of this body that you proceed with an amendment, you
really ought to seriously consider why Buckley is even on the
table. If your concern is what you think--I do not think, but
you may think Citizens United did, indeed as one of the
previous Senators observed that the Buckley case was a
principled decision, if that were your view, you ought not to
reverse it. And this constitutional amendment reverses a slew
of constitutionally rooted cases, which require very serious
deliberation. Thank you.
Senator Blumenthal. Sir.
Professor Raskin. Thank you, Senator. Let us see. A couple
of things about that point.
One is that Buckley has been taken to an extreme. This is
the problem, that we have a runaway faction on the Court which
now has used the ideas of Buckley to strike down, for example,
the public finance regime in Arizona, which got more candidates
involved, increased speech, encouraged competition, as Justice
Kagan pointed out, and they struck that down. And, by the way,
the ACLU position is pro-public finance. And they have
dramatically narrowed the meaning of corruption from Buckley,
too.
Now, you know, I yield to no one in my respect and
deference to Mr. Abrams in terms of his career as an ACLU and
civil libertarian lawyer, but there is a big division within
the ACLU and within civil libertarians on this. There is a
letter that was written by Burt Neuborne and Norman Dorsen,
Aryeh Neier, John Shattuck, and Mort Halperin taking the
opposite position, because in our history free speech and
democracy go together, and they stand best when they stand
together. And what has happened in the name of free speech is
now the development of alarming corporate domination, which had
always been rejected both by democrats--small ``D'' democrats--
and civil libertarians in the past.
So I think that we need to reunify democracy and civil
liberty, and this constitutional amendment gives us the
framework to work it out, because this faction on the Supreme
Court is stealing away from democratic institutions the power
to regulate money and to establish what has been a wall of
separation between plutocratic wealth and democratic politics
for a century.
Senator Blumenthal. Thank you. My thanks to all of you, and
to all of the audience for attending, and I am going to adjourn
this hearing, keep the record open for 1 week. Your testimony
has been excellent and very helpful and informative, and on
behalf of the Committee, our thanks. Thank you.
[Whereupon, at 1:30 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
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