[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







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                     U.S. GOVERNMENT PUBLISHING OFFICE 
		 
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                       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.]

                            A P P E N D I X

              Additional Material Submitted for the Record



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