    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

      CITIZENS UNITED AT 10: THE CONSEQUENCES FOR DEMOCRACY AND POTENTIAL
                             RESPONSES BY CONGRESS

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON THE CONSTITUTION,
                        CIVIL RIGHTS, AND CIVIL JUSTICE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                FEBRUARY 6, 2020

                                   __________

                               Serial No. 116-74

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Available http://judiciary.house.gov or www.govinfo.gov

                                ______

                 U.S. GOVERNMENT PUBLISHING OFFICE
     41-288               WASHINGTON : 2020

                           COMMITTEE ON THE JUDICIARY

                       JERROLD NADLER, New York, Chairman
    ZOE LOFGREN, California              DOUG COLLINS, Georgia,
    SHEILA JACKSON LEE, Texas              Ranking Member
    STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr.,
    HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
        Georgia                          STEVE CHABOT, Ohio
    THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
    KAREN BASS, California               JIM JORDAN, Ohio
    CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
    HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
    DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
    ERIC SWALWELL, California            MATT GAETZ, Florida
    TED LIEU, California                 MIKE JOHNSON, Louisiana
    JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
    PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
    VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
    J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
    MARY GAY SCANLON, Pennsylvania,      BEN CLINE, Virginia
      Vice-Chair                         KELLY ARMSTRONG, North Dakota
    SYLVIA R. GARCIA, Texas              W. GREGORY STEUBE, Florida
    JOE NEGUSE, Colorado
    LUCY McBATH, Georgia
    GREG STANTON, Arizona
    MADELEINE DEAN, Pennsylvania
    DEBBIE MUCARSEL-POWELL, Florida
    VERONICA ESCOBAR, Texas

            Perry Apelbaum, Majority Staff Director & Chief Counsel
                    Brendan Belair, Minority Staff Director
                                     ------

                SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
                              AND CIVIL LIBERTIES

                         STEVE COHEN, Tennessee, Chair
    JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana,
    ERIC SWALWELL, California              Ranking Member
    MARY GAY SCANLON, Pennsylvania       LOUIE GOHMERT, Texas
    MADELEINE DEAN, Pennsylvania         JIM JORDAN, Ohio
    SYLVIA R. GARCIA, Texas              GUY RESCHENTHALER, Pennsylvania
    VERONICA ESCOBAR, Texas              BEN CLINE, Virginia
    SHEILA JACKSON LEE, Texas            KELLY ARMSTRONG, North Dakota

                           James Park, Chief Counsel
                         Paul Taylor, Minority Counsel

                                C O N T E N T S

                                  ----------

                                FEBRUARY 6, 2020

                               OPENING STATEMENTS

                                                                       Page
    The Honorable Steve Cohen, Chairman, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     1
    The Honorable Mike Johnson, Ranking Member, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     4

                                   WITNESSES

    The Honorable Ted Deutch, Member of Congress
        Oral Testimony...............................................     9
        Prepared Testimony...........................................    34
    The Honorable Pramila Jayapal, Member of Congress
        Oral Testimony...............................................    39
        Prepared Testimony...........................................    41
    Ellen L. Weintraub, Commissioner, Federal Election Commission
        Oral Testimony...............................................    45
        Prepared Testimony...........................................    48
    Robert Weissman, President, Public Citizen
        Oral Testimony...............................................    53
        Prepared Testimony...........................................    55
    Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault
      Professor of Law, Capital University Law School
        Oral Testimony...............................................    56
        Prepared Testimony...........................................    58
    Ciara Torres-Spelliscy, Professor of Law, Stetson University
      College of Law
        Oral Testimony...............................................    71
        Prepared Testimony...........................................    73

              LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

    Statement by the Honorable Jerrold Nadler, submitted by the
      Honorable Steve Cohen, Chairman, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     6
    Items for the record submitted by the Honorable Ted Deutch,
      Committee on the Judiciary.....................................    10
    Items for the record submitted by the Mary Gay Scanlon, Committee
      on the Judiciary...............................................    92
    Items for the record submitted by the Steve Cohen, Committee on
      the Judiciary..................................................   106

                                    APPENDIX

    Items for the record submitted by The Honorable Steve Cohen,
      Chairman, Subcommittee on the Constitution, Civil Rights, and
      Civil Liberties................................................   112
    Items for the record submitted by The Honorable Mike Johnson,
      Ranking Member, Subcommittee on the Constitution, Civil Rights,
      and Civil Liberties............................................   119
    Items for the record submitted by The Honorable Doug Collins,
      Ranking Member, Committee on the Judiciary.....................   124

      CITIZENS UNITED AT 10: THE CONSEQUENCES FOR DEMOCRACY AND POTENTIAL
                             RESPONSES BY CONGRESS

                                  ----------

                           THURSDAY, FEBRUARY 6, 2020

                            House of Representatives

                Subcommittee on the Constitution, Civil Rights,
                              and Civil Liberties

                           Committee on the Judiciary

                                Washington, DC.

        The subcommittee met, pursuant to call, at 10:06 a.m., in
    Room 2141, Rayburn House Office Building, Hon. Steve Cohen
    [chairman of the subcommittee] presiding.
        Present: Representatives Cohen, Raskin, Swalwell, Scanlon,
    Dean, Escobar, Jackson Lee, Johnson of Louisiana, Jordan,
    Cline, and Armstrong.
        Staff Present: David Greengrass, Senior Counsel; John Doty,
    Senior Advisor; Madeline Strasser, Chief Clerk; Moh Sharma,
    Member Services and Outreach Advisor; Anthony Valdez, Staff
    Assistant; John Williams, Parliamentarian; Jordan Dashow,
    Professional Staff Member; James Park, Chief Counsel,
    Constitution Subcommittee; Will Emmons, Professional Staff
    Member, Constitution Subcommittee; Matt Morgan, Counsel,
    Constitution Subcommittee.
        Mr. Cohen. The Committee on the Judiciary, Subcommittee on
    the Constitution, Civil Rights, and Civil Liberties, will come
    to order.
        Without objection, the Chair is authorized to declare
    recesses of the subcommittee at any time.
        I welcome everyone to today's hearing, ``Citizens United at
    10: Consequences for Democracy and Potential Responses by
    Congress.''
        I will now recognize myself for an opening statement.
        Can you hear me?
        Can you hear me now? [Laughter.]
        Well, I am not going to talk that way. I will try to talk
    closer to the microphone. Thank you.
        This year marks the 10th anniversary of the Supreme Court's
    deeply troubling decision in Citizens United v. Federal
    Election Commission. That decision has resulted in the
    corrosion of our democracy, giving a disproportionate weight to
    monied interests and drowning out the voices of ordinary
    Americans. Today's hearing will examine the extent of this
    corrosion and explore ways to repair the damage that the flood
    of dark money into our political system has wrought as a result
    of that decision.
        In Citizens United the Supreme Court struck down as
    unconstitutional a ban on corporations and unions using their
    general treasury funds to make independent expenditures
    expressly advocating for the election or defeat of a candidate.
    Essentially, the Court held wrongly, in my view, that this ban
    on independent expenditures violated corporations' First
    Amendment free speech rights.
        Citizens United represented an unjustified extension of
    Buckley v. Valeo, a Supreme Court decision in 1976 that had
    struck down limits on independent expenditures by individuals.
    In handing down its decision in Citizens United, the Supreme
    Court overturned decades-old precedents that held that the
    government could regulate outside spending by corporations and
    unions.
        The negative effect of Citizens United was immediately
    apparent. The same year that the Supreme Court decided Citizens
    United, the U.S. Court of Appeals for the U.S. District decided
    Speechnow.org v. FEC, striking down Federal limitations on
    contributions by individuals to political committees that only
    made independent expenditures.
        Taken together, these two decisions resulted in the rise of
    the so-called super-political action committees, or Super PACs.
    Because of these decisions, individuals and corporations can
    make unlimited contributions to PACs dedicated only to making
    independent expenditures whose donor disclosure rules are much
    more opaque, allowing them to accumulate massive amounts of
    dark money.
        It is now 10 years later and we are seeing the negative
    corrosive effects of a decade of permitting wealthy mega-donors
    and corporations pouring unlimited amounts of money into our
    elections. Perhaps now more than ever, many Americans believe
    that their elected leaders do not care about them, that
    politicians only care about raising money and the people who
    fund those Super PACs that help get them elected, prioritizing
    narrow interests to the money class or corporations in the
    political system people feel is rigged against them. They
    believe their voices will be drowned out come the election by
    the megaphones bought by dark money, megaphones as if they are
    speech. Example after example shows they are right.
        For instance, most Americans, including most gun owners,
    support universal background checks for gun purchases.
    According to a 2018 Quinnipiac University poll, almost all
    Americans, including 97 percent of gun owners, support
    universal background checks. Despite the fact that enacting
    universal background checks would be overwhelmingly popular,
    the Grim Reaper, also known as Mitch McConnell, the Majority
    Leader, has so far refused to take up H.R. 8, the bipartisan
    Background Checks Act, which the House passed nearly a year
    ago. Perhaps not surprisingly, since 2016, the National Rifle
    Association has spent more than $54 million on outside spending
    efforts, including $34 million raised from its dark money arm.
    That is a lot of money and has a big impact on who wins
    elections and influences the opinions on gun ownership.
        Similarly, Americans overwhelmingly support lowering
    prescription drug prices. According to the Henry J. Kaiser
    Family Foundation, more than 70 percent of Americans believe
    drug costs are unreasonable and that drug companies are putting
    profits before people. Similarly, a study conducted by Politico
    and the Harvard School of Public Health found that 92 percent
    of Americans favor lowering the rates for prescription drugs as
    an important health policy priority. Even President Trump
    during his Show of Shows, also known as the State of the Union
    address earlier this week, in a speech that could otherwise
    best be described as a campaign rally masquerading as a reality
    TV show, called on Congress to pass a bill to dramatically
    lower drug prices. Yet for years Congress has done nothing.
    Why? It probably has something to do with pharmaceutical
    companies' army of lobbyists backed up by massive amounts of
    dark money raised by allied Super PACs.
        Sadly, I can name policy after policy area, from climate
    change to Wall Street regulations meant to avert another
    economic meltdown, where Americans overwhelmingly believe that
    Congress should take action, yet Congress has failed to take
    such action when confronted by massive and targeted outside
    spending by dark money organizations.
        And the people that benefit from that are the leaders of
    the Senate and the leaders of the House, and generally they are
    not going to favor giving up a tool that gives them more power,
    particularly on the side that has the most money.
        The very real danger here is that the American people,
    convinced that their voices will be drowned out by mega-donors
    and corporate interests, will lose faith in the enterprise of
    self-government and indeed turn to demagogic and anti-
    democratic forces. It is for this reason that I support a
    constitutional amendment to overturn Citizens United. I am a
    co-sponsor of H.J. Res. 2, the Democracy for All Amendment, and
    I thank Representative Deutch for working so hard on that for
    many, many years. Passing a constitutional amendment is one way
    to bring the dark age of the Super PAC to a definitive close.
        I also urge Leader McConnell to take up H.R. 1, the For the
    People Act, which I believe Representative Sarbanes championed,
    which would enact reforms that would expose dark money donors.
    And I thank Representative Jayapal for all her work on this
    issue as well. She has another bill that goes a little further.
        Passing a constitutional amendment to overturn Citizens
    United should be our ultimate goal. In the meantime, however,
    Congress should take whatever action it can to stop the flow of
    dark money into our elections that threatens to erode even
    further the American people's faith in democratic self-
    government.
        I look forward to our witnesses' testimony and I thank them
    all for appearing here, and all the citizens that have been
    involved in this issue, and I now recognize the Ranking Member,
    Mr. Johnson, for his opening statement.
        Mr. Johnson of Louisiana. Thank you, Mr. Chairman, and
    thank you all for being here. I know this is an issue that
    concerns a lot of Americans on both sides, and it will not
    surprise you that our side over here has a very different view
    of the issue.
        Before I get into my opening remarks, it is incumbent upon
    me to remind my good chairman here that it is a violation of
    House rules and decorum to refer to the Majority Leader of the
    other house as the Grim Reaper. Even if he does so himself, we
    can't do it here.
        Mr. Cohen. I'm out of order. So ruled. [Laughter.]
        Sustained. Overruled. [Laughter.]
        Mr. Johnson of Louisiana. No objection.
        We believe the Supreme Court's decision in Citizens United
    issued a decade ago was based upon a long line of prior Supreme
    Court precedents and was in accordance with our proud
    constitutional history regarding the First Amendment.
        As the late Justice Scalia pointed out in his concurrence
    in Citizens United, the original meaning of the text of the
    First Amendment clearly supports the majority's decision. This
    is what he wrote: ``In 1791, as now, corporations could pursue
    only the objectives set forth in their charters, but the
    dissent provides no evidence that their speech in the pursuit
    of those objectives should be censored. Most of the Founders'
    resentment towards corporations was directed at the state-
    granted monopoly privileges that individually-chartered
    corporations enjoyed. Modern corporations don't have such
    privileges and would probably have been favored by most of our
    enterprising Founders. The individual person's right to speak
    includes the right to speak in association with other
    individual persons. Surely the dissent does not believe that
    speech by the Republican Party or the Democratic Party can be
    censored because it is not the speech of an individual
    American. It is the speech of many individual Americans who
    have associated in a common cause, giving the leadership of the
    Party the right to speak on their behalf. The First Amendment
    is written in terms of speech, not speakers. Its text offers no
    foothold for excluding any category of speaker, from single
    individual to partnerships of individuals to unincorporated
    associations of individuals to incorporated associations of
    individuals.''
        This is not just a conservative's view. As you know, the
    American Civil Liberties Union, which most Americans regard as
    a left or far left organization today--I do--seems generally
    supportive of the Citizens United decision. On its website
    today you can find the following statement: ``In Citizens
    United, the Supreme Court ruled that independent political
    expenditures by corporations and unions are protected under the
    First Amendment and not subject to restriction by the
    government. Any rule that requires the government to determine
    what political speech is legitimate and how much political
    speech is appropriate is difficult to reconcile with the First
    Amendment. Our system of free expression is built on the
    premise that the people get to decide what speech they want to
    hear. It is not the role of government to make that decision
    for them. Unfortunately, legitimate concern over the influence
    of big money in politics has led some to propose a
    constitutional amendment to reverse the Citizens United
    decision. The ACLU will firmly oppose any constitutional
    amendment that would limit the free speech clause of the First
    Amendment.''
        I don't find myself in agreement with the ACLU very often,
    but I think they got that one right. You see, the ACLU and
    Justice Scalia appear to be on the same page, and that page is
    the parchment of our First Amendment.
        I suspect much of what we will hear today at this hearing
    will be repetitions of the sorts of erroneous statements that
    none other than President Obama made about the Citizens United
    decision during his 2010 State of the Union address in which he
    opined, ``The Supreme Court reversed a century of law that I
    believe will open the floodgates of special interests,
    including foreign corporations, to spend without limit in our
    elections.''
        Every clause of that sentence was incorrect. Citizens
    United didn't reverse a century of law. The Tillman Act of 1907
    banned corporate donations to campaigns, and such donations
    remain banned. Citizens United overturned a 1990 precedent that
    allowed banning independent spending by corporations, which was
    itself a stark anomaly in our First Amendment law, as it was
    the only time the Court had allowed a restriction on political
    speech for a reason other than the need to prevent corruption.
        Second, the ``floodgates of special interests'' weren't
    opened. Instead, dams preventing the free flow of speech were
    removed. We may not always like that speech, but that is what
    the First Amendment is about. As Professor Brad Smith, whom we
    will hear from today, explained recently, ``The New York Times
    accused the justices in Citizens United of having paved the way
    for corporations to use their vast treasuries to overwhelm
    elections and thrust back to the robber baron era of the 19th
    century.'' A decade later, most spending comes from the same
    place it always has, and that is individuals who donate
    directly to candidates up to legally limited amounts.
    Corporations contribute well under 10 percent of Federal
    political spending. Their voice is not dominant, and voters
    have a right to hear it.
        Third and finally, Citizens United said nothing about
    foreign corporations spending in political campaigns. Indeed,
    in 2012 the Supreme Court explicitly upheld such restrictions
    in Bluman v. Federal Election Commission. Obviously, there is a
    lot of misunderstanding and misinformation and even, dare I
    say, fake news circulated about the Supreme Court's Citizens
    United decision. But I expect at least part of today's
    discussion may help us correct those misinterpretations, and I
    look forward to hearing from all of our witnesses here today.
        I am going to apologize in advance before I yield back. A
    lot of us have multiple things going on this morning, so we may
    be in and out, but it is not a reflection on our view of the
    importance of this subject matter and this hearing.
        I yield back. Thank you.
        Mr. Cohen. Thank you, Mr. Johnson.
        Now, Mr. Nadler, who is not present, gave us a statement
    for the record, and we thank Chairman Nadler for his
    participation in other ways.
        [The information follows:]

                       MR. COHEN FOR THE OFFICIAL RECORD

    =======================================================================

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Does Mr. Collins have a statement to enter? No?
        We welcome our witnesses and thank them for participating.
    Our first panel will be made up of members of Congress who
    worked hard on this issue. I will introduce each witness, and
    after the introduction I will ask them for their testimony.
        Your written statement will be entered into the record in
    its entirety, and you get 5 minutes, and you know the rules of
    the 5 minutes and the lights.
        The first witness is Representative Ted Deutch.
    Representative Deutch represents the 22nd Congressional
    District in the State of Florida. He is the Chairman of the
    House Ethics Committee, Chairman of the House Foreign Affairs
    Subcommittee on the Middle East, North Africa, and
    International Terrorism, and a long-time member of this House
    Judiciary Committee.
        He is a co-sponsor or the prime sponsor of H.J. Res. 2, a
    proposed constitutional amendment that would effectively
    overturn the Citizens United decision and permit Congress and
    the states to regulate campaign finance.
        Mr. Deutch, you are recognized for 5 minutes.

     STATEMENT OF THE HON. THEODORE E. DEUTCH, A REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF FLORIDA

        Mr. Deutch. Thank you. Before I begin my testimony, Mr.
    Chairman, I ask the following documents be included in the
    record: written testimony of bipartisan advocates from around
    the country, including Jeff Clement, President of American
    Promise; John Pudner, the Executive Director of Take Back Our
    Republic; Jim Rubens, the former Republican New Hampshire state
    senator; as well as business executives, farmers, educators,
    health workers from Ohio, New Jersey, Michigan, California,
    Tennessee, Pennsylvania, and Kansas.
        Mr. Cohen. Without objection.
        Mr. Deutch. Thank you.
        [The information follows:]

                       MR. DEUTCH FOR THE OFFICIAL RECORD

    =======================================================================

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Deutch. Thank you, Chairman Cohen, Ranking Member
    Johnson, and members of the subcommittee. It has been 10 years
    since the Supreme Court's disastrous decision in Citizens
    United, and I am here today to call for a constitutional
    amendment to overturn it.
        In the 5-4 majority opinion, Justice Anthony Kennedy
    dismissed concerns about corruption caused by limitless
    spending. He wrote, ``The appearance of influence or access
    will not cause the electorate to lose faith in our democracy.''
    But it has.
        The decision knocked down longstanding bipartisan campaign
    finance laws.
        There are three primary problems that have crystallized in
    the Citizens United decade. First, extreme election spending
    destroys any hope of political equality in America. Second,
    current disclosure and anti-coordination rules have not
    prevented corruption or stopped foreign interference. And
    third, very few very wealthy individuals have extraordinary
    influence. Government institutions too often focus on their pet
    projects rather than on the public will.
        Citizens United unleashed a torrent of billions of dollars
    into our elections. In the 20 years before the Citizens United
    decision, $750 million of outside spending. In the 10 years
    since, over $4.5 billion.
        Dark money groups are not required to disclose their
    donors. Their spending jumped from $129 million in the 10 years
    before the decision to $1 billion since. The 10 families who
    spent the most in our elections in the Citizens United decade
    spent a total of $1.2 billion.
        Now, to put that in perspective, it would take 6 million
    Americans spending $200 each to match the spending of these 10
    families. This flood of spending has distorted the agenda in
    Congress, and we now know that it is sapping America's faith in
    our democracy and our government.
        Eighty-four percent of Americans think that special
    interests come first here. Last year the House passed the For
    the People Act and the Voting Rights Advancement Act, and these
    bills would require disclosure and end gerrymandering and make
    it easier to vote and protect voting rights. But statutory
    changes alone can't fix the problems created by Citizens
    United.
        The Democracy for All Amendment would allow reasonable
    limits on campaign spending. Americans want to get big money
    out of our elections. The amendment rejects the Supreme Court's
    claim that only quid pro quo bribes can corrupt politicians.
    Our amendment would level the playing field. It would promote
    political equality, and it would protect the integrity of our
    government institutions and elections.
        I want to thank the millions of advocates and hundreds of
    organizations who built the movement to get money out of
    politics. Twenty states and over 800 local governments are
    calling for a constitutional amendment, and we wouldn't be here
    today without them.
        I want to thank Vice Chair Raskin, Representative McGovern,
    Representative Katko, and Senators Udall and Shaheen for
    joining me in introducing this bipartisan amendment. And I want
    to thank the 210 co-sponsors, including Congresswoman Jayapal
    and many members of this subcommittee, for their support.
        And to be clear, this issue is not partisan among the
    American people. In 2018, the University of Maryland reported
    that 75 percent of Americans, three-quarters of all Americans,
    support a constitutional amendment to allow for limits on
    election spending. That includes 85 percent of Democrats, 70
    percent of Independents, and two-thirds of Republicans.
        We must overturn Citizens United to fulfill the ideals we
    affirmed at our nation's founding. The Democracy for All
    Amendment is necessary because your status in our democracy
    should not depend upon your status in our economy. Whether you
    work three jobs and barely get by, or you own three homes and
    you barely work, the eyes of our law, the eyes of our
    government, our elections, must see all Americans as equal.
    This amendment will get money out of our elections. And most
    importantly, it will put voters back in charge.
        With that, Mr. Chairman, I appreciate the time, and I yield
    back.
        [The statement of Mr. Deutch follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Mr. Deutch. Very well timed and very
    well delivered.
        Ms. Jayapal is next. Representative Pramila Jayapal has
    been a leader in Congress on many, many progressive issues. She
    represents the 7th Congressional District of Washington State.
    She is a member of the House Judiciary Committee, where she
    sits on the Immigration and Antitrust Subcommittees. She is a
    senior Whip for the Democratic Caucus and Co-Chair of the
    Congressional Progressive Caucus and the Women's Working Group
    on Immigration. She is the sponsor of H.J. Res. 48, a proposed
    constitutional amendment providing that the rights protected by
    the Constitution of the United States are the rights protected
    of natural persons only.
        Congresswoman Jayapal, you are recognized for 5 minutes.
    Thank you.

      STATEMENT OF THE HON. PRAMILA JAYAPAL, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF WASHINGTON

        Ms. Jayapal. Chairman Cohen, Ranking Member Johnson, and
    members of the subcommittee, thank you so much for the
    opportunity to testify on my bill, House Joint Resolution 48,
    the We the People Amendment.
        Ten years ago, the Supreme Court issued its 5-4 landmark
    ruling in Citizens United v. Federal Elections Commission. The
    implications of Citizens United reach far beyond electoral
    politics and political donations. It has had a profound impact
    on our elections, our policymaking, and our daily lives.
        And that is why I am proud to sponsor H.J. Res. 48, the We
    The People Amendment, a comprehensive solution to the Citizens
    United decision. Corporations and the few ultra-rich have
    hijacked our elections for far too long. The We The People
    Amendment would put power back to everyday people by ending
    corporate personhood and clarifying that money does not equal
    free speech.
        Citizens United established political spending as protected
    speech under the First Amendment of the Constitution and
    further prevented the government from limiting corporations and
    other entities from spending money on candidates in elections.
    This established a dangerous precedent of corporate personhood
    that the We the People Amendment reverses by specifying that
    the rights provided by the Constitution are for real people,
    individuals, not corporations.
        The Supreme Court's decision empowered the Federal
    Elections Commission to allow outside groups to accept
    unlimited political donations, giving corporations and the
    ultra-rich unrestricted power in elections. This created an
    enormous imbalance in power in which the average American's
    ability to influence elected officials is dwarfed by large
    corporations.
        As we in Congress grapple with critical issues such as
    climate change, immigration, and an inequitable health care
    system, we must recognize the power that those with financial
    stakes in these industries such as the oil and gas, private
    prison, and insurance companies exert in our elections.
        The We the People Amendment would regulate political
    donations and mandate public disclosure to ensure transparency
    and public accountability.
        Yet, the impact of Citizens United is not limited to the
    role of money in politics. The freedom of expression granted to
    corporations in Citizens United led to the decision in Hobby
    Lobby v. Sebelius. The Court granted a corporation the ability
    to opt out of provisions of the Affordable Care Act in order to
    deny basic health care to women employees on the basis that a
    corporation has religious liberty. It puts corporate rights
    over a woman's right to make decisions about her own body, and
    it is one more reason why we must limit corporate personhood
    beyond elections.
        Research has found, as my colleague Mr. Deutch said, that
    77 percent of Americans believe that there should be limits on
    the amount that both individuals and groups can spend on
    campaigns. The time has come for Congress to intervene. I am a
    proud co-sponsor of H.R. 1, the For the People Act, and of
    Congressman Deutch's Democracy for All Amendment. I believe
    that Congress and the states must do the important work of
    regulating campaign contributions and distinguishing between
    people and corporations when creating campaign finance
    legislation.
        The We the People Amendment goes further, to end corporate
    constitutional rights and ensure that our democracy is really
    of the people, by the people, and for the people. I believe our
    democratic values are worth more than what corporations can
    pay. In the Citizens United dissenting opinion Justice Stevens
    wrote, ``corporations have no consciences, no beliefs, no
    feelings, no thoughts, no desires. Corporations help structure
    and facilitate the activities of human beings, to be sure, and
    their `personhood' often serves as useful legal fiction. But
    they are not themselves members of `We the People' by whom and
    for whom our Constitution was established.''
        As members of Congress, we are here to serve the people,
    not to serve corporations. We are here to ensure that our
    democracy is sustained by We the People, and that we in
    Congress, the elected members, elected by our constituents,
    must listen only to We the People.
        I look forward to working with my colleagues on this
    committee to reverse the harmful impacts of Citizens United and
    advance the goals set forth in this amendment, and I thank the
    movement around the country that has forced us to take on this
    issue.
        I yield back.
        [The statement of Ms. Jayapal follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Ms. Jayapal, for your representation
    and your testimony.
        I thank the first panel for their testimony and their work,
    and dismiss them and call up our second panel of witnesses.
        Can those of you in the back hear me any better, or is it
    still a problem? Good. Thank you.
        Normally I do not have the witnesses sworn in or affirmed,
    because I think that we shouldn't put people in that particular
    position, and it is against the law, Section 1001 of Title 18
    of the U.S. Code, to testify before Congress in an untruthful
    manner which could subject you to penalties and fines. I think
    that is sufficient.
        Mr. Johnson, who unfortunately is not with us now, is a
    firm proponent of having the oath administered, and I had
    thought that people would always tell the truth knowing that
    they are subject to fine or imprisonment, or at least fine, to
    lie to Congress.
        But yesterday Mitt Romney, what was an historic day in
    Congress, showed me that at least one person, at least one
    person, because they swore their oath to God, it made a
    difference. So in honor of Mitt Romney and showing that one
    person truly does have concern about not giving false witness
    because they swore an oath to God, I am going to ask the
    witnesses to stand and be sworn in.
        Do you swear or affirm under penalty of perjury that the
    testimony you are about to give is true and correct to the best
    of your knowledge, information, and belief, so help you God?
        Thank you.
        Let the record show the witnesses have answered in the
    affirmative.
        Our first witness is Ellen Weintraub. Ms. Weintraub is the
    Commissioner of the Federal Election Commission, a position she
    has held since 2002. She served as Chair of the FEC on three
    different occasions, most recently in 2019. She briefly served
    as Counsel to the House Ethics Committee.
        Commissioner Weintraub received her J.D. from Harvard Law
    School and her B.A. from Yale.
        Ms. Weintraub, you are recognized for 5 minutes. You know
    about the 5 minutes, the red light, the green light.
        You are recognized.

    TESTIMONIES OF ELLEN WEINTRAUB, COMMISSIONER, FEDERAL ELECTION
    COMMISSION; ROBERT WEISSMAN, PRESIDENT, PUBLIC CITIZEN; BRADLEY
      SMITH, JOSIAH H. BLACKMORE II/SHIRLEY M. NAULT PROFESSOR OF
      LAW, CAPITAL UNIVERSITY LAW SCHOOL; CIARA TORRES-SPELLISCY,
          PROFESSOR OF LAW, STETSON UNIVERSITY COLLEGE OF LAW

                      TESTIMONY OF ELLEN WEINTRAUB

        Ms. Weintraub. Chair Cohen, Ranking Member Johnson, and
    members of the subcommittee, thank you for inviting me to
    testify today. It is a pleasure to be part of such a
    distinguished panel, and a particular pleasure for me to appear
    with my old friend and former colleague, Brad Smith. I
    compliment the minority on selecting such an esteemed panelist.
        In the decade since Citizens United, according to the
    Center for Responsive Politics, we have seen $1.2 billion given
    to candidates, parties, and outside spending groups from just
    the top 10 contributors. We have not seen who is behind the
    nearly $1 billion that has been spent by dark money groups that
    keep their donors secret. And there has been $4.5 billion in
    non-party outside spending, 12 times as much per year as in the
    20 years before Citizens United.
        This spending flocks to the most competitive races, where
    it has the biggest impact, especially where control of a
    chamber is up for grabs. From 2000 to 2006, pre-Citizens
    United, not surprisingly, candidate spending exceeded outside
    spending in the top 10 most expensive Senate races in every
    single race. But by 2014, after Citizens United, outside
    spending topped candidate spending in seven of those top 10
    races. And in those races, the outside groups spent an average
    of 80 percent more than the candidates.
        But even in the face of Citizens United, there are steps
    that Congress can take right now to reduce the risk of
    corruption, to address important issues like coordination,
    coercion, disclosure, and foreign national spending. Some of
    these solutions are well-known to members of this subcommittee:
    H.R. 1, which passed the House in 2019, contained many useful
    reform proposals, requiring better disclosure of large donors
    to political committees; clarifying that the foreign national
    political spending ban applies to ballot issues; creating a
    small-dollar matching public financing program; creating a
    Democracy Vouchers pilot program; reforming the financing of
    inaugural committees; requiring shell companies to disclose
    their beneficial owners; extending electioneering
    communications disclosure requirements to online ads; and
    requiring a public file of online political ads.
        One reform that would aid in the important effort to
    exclude foreign money from our system was in an earlier version
    of H.R. 1. That provision would have required corporations that
    are spending in politics to certify that they are complying
    with the foreign national political spending ban. I urge you to
    restore it if the bill is introduced in a future Congress.
        The Supreme Court, in upholding contribution limits in
    Buckley v. Valeo, recognized ``the reality or appearance of
    corruption inherent in a system permitting unlimited financial
    contributions, even when the identities of the contributors and
    the amounts of their contributions are fully disclosed.'' But
    contribution limits have been undermined by joint fundraising
    committees that collect upwards of half-a-million dollars per
    donor; by so-called cromnibus accounts, which allow
    contributors to give to the national party committees more than
    $1.5 million per person per election cycle; and by outdated
    coordination standards that cannot bear the weight that Super
    PACs have placed on them.
        Super PACs are premised on the fiction that they are
    entirely independent of candidates, and therefore the money
    raised by Super PACs supposedly cannot corrupt those
    candidates. In reality, candidates appear as special guests at
    fundraisers for the so-called ``independent'' Super PACs
    supporting them.
        Super PACs are established by close family or current or
    former staff of the candidate. Candidates publicly announce
    which Super PACs they favor and encourage people to support it.
    Candidates post videos of themselves for the apparent purpose
    of inviting Super PACs to use it in ads.
        Congress should adopt new law making crystal clear that if
    we are going to have independent spending groups, they must be
    truly independent of the candidates.
        In empowering corporations, Citizens United created
    opportunities for unscrupulous employers to pressure their
    employees to engage in political activity on behalf of
    management's favorite candidates. Congress should adopt new
    laws to protect employees from political coercion.
        The proliferation of Super PACs in the post-Citizens United
    era has also given rise to new opportunities for con artists.
    Scam PACs have become an increasing problem that calls out for
    strengthening the anti-fraud provisions.
        The chief concern when Citizens United unleashed corporate
    political spending was that Fortune 1000 companies would use
    their enormous financial might to dominate political discourse.
    That has not been the biggest impact. Instead, it is the
    billionaire mega-donors whose role has been super-charged in
    the Super PAC era. The top 1 percent of Super PAC donors
    accounted for an astonishing 96 percent of funding to these
    groups in 2018. No statute, no regulation, no FEC advisory
    opinion can touch this problem. Only a judicial or
    constitutional reversal of Citizens United can get at the root
    of it.
        And while I know this is not within the House's purview,
    the FEC could really use some new commissioners to restore our
    quorum and let us do our job. So, tell your friends.
        Again, thank you for inviting me here today, and I look
    forward to your questions.
        [The statement of Ms. Weintraub follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. You are welcome. And thank you, Ms. Weintraub,
    for your testimony.
        Our second witness is Mr. Robert Weissman. Mr. Weissman is
    President of Public Citizen. He is an expert on corporate and
    government accountability, including the effect of money in
    politics. Prior to joining Public Citizen, he worked as
    Director of the Corporate Accountability Organization of
    Central Action from 1995 to 2009. From 1989 to 2009, he was
    Editor of Multinational Monitor, a magazine that tracks
    multinational corporations.
        Mr. Weissman received his J.D. from Harvard magna cum
    laude. He is recognized now for 5 minutes.
        Where did you get your undergraduate degree?
        Mr. Weissman. Harvard.
        Mr. Cohen. You had a long lease.

                      TESTIMONY OF ROBERT WEISSMAN

        Mr. Weissman. Thank you very much, Chairman Cohen and
    members of the committee.
        Citizens United is the emblematic decision of the new
    Gilded Age in which we live. It represents, it ratifies, and it
    worsens the extreme wealth and income inequality that defines
    our current societal situation. It has empowered a very tiny
    number of people to have a disproportionate, a wildly
    disproportionate influence over who runs for office, who wins
    elections, what candidates say, what candidates don't say, and
    what officeholders do, what officeholders are even permitted to
    say and to be taken seriously when in office.
        When I say a small number of people, I mean a very small
    number of people. Twenty-five individuals are responsible for
    half of all Super PAC contributions made since the Citizens
    United decision was handed down, 25 individuals; .01 percent of
    donors, .01 percent of donors, are responsible for roughly 40
    percent of all campaign contributions now.
        There is, of course, an important race component of this as
    well, given the tracking of race and wealth in our country.
    Almost all the top 100 Super PAC donors are white. Our analysis
    shows the majority of white zip codes contribute 20 times the
    amount to campaigns as majority minority zip codes do. It is
    not an abstract issue. It is a deeply-felt issue. It touches
    every single issue this Congress and our administration
    undertake.
        To take one example, as mentioned by Representative Deutch,
    the American people overwhelmingly want action on drug pricing.
    President Trump himself just called for action on drug pricing.
    Ninety percent of people want aggressive action to deal with
    drug pricing. They have wanted it for a long time. It hasn't
    happened. It is no mystery why. It is due to the
    disproportionate political influence of Big Pharma.
        To take another example, we face an existential crisis for
    humanity in catastrophic climate change. This Congress has been
    unable to do anything about it. Why? This traces directly back
    to the political power of the dirty energy industries.
        This is true for issue after issue, whether Wall Street
    reform or food safety or living wage or commonsense gun safety,
    expanded Social Security, protecting consumer privacy,
    proposing appropriate corporate taxes, dealing with Pentagon
    spending, protecting clean water. Almost anything you name is
    touched by this issue, and it traces back to the
    disproportionate influence of big money in our elections where
    the agenda that the American people want overwhelmingly is not
    furthered by this Congress because of the political power of
    these large entities.
        It doesn't have to be so. Citizens United is rooted in a
    series of very significant flaws both in constitutional terms,
    historic terms, and commonsense terms. It is not just Citizens
    United, it is the entirety of modern campaign finance
    jurisprudence.
        Citizens United itself famously rests on the illogical
    assertion that corporations have the same rights to influence
    election outcomes as do human beings. There are a series of
    other flawed notions that underlay the decision as well,
    including that spending on advertising should be given the same
    rights of political speech as speech itself. It required the
    Supreme Court to contort itself to come up with a very narrow
    conception of what amounts to corruption, nothing other than
    bribery effectively, yet they even understood how quid-pro-quo
    corruption itself would work. They adopted a needlessly cramped
    understanding of what corruption is, excluding concerns about
    excessive influence and access. And they ignored, most
    importantly, the systemic effects of their decision in modern
    campaign finance jurisprudence to empower the super-rich and
    distort the political system and deny the political equality
    that is at the core of what American democracy is all about.
        Polling shows that Americans are furious at the state of
    affairs. They are outraged by what they perceive to be
    widespread corruption, and they overwhelmingly support
    fundamental campaign finance reform. Indeed, democratic
    legitimacy itself is at stake. Democratic legitimacy itself is
    at stake.
        The Congress in the face of this must take action. H.R. 1
    is a vitally important step. This House has passed it. The
    Senate should get on with the business of doing the same thing.
    But H.R. 1 is not enough. It cannot deal with the problem of
    outside spending. It cannot deal with the problem of self-
    financing. And the current trend of Supreme Court jurisprudence
    suggests that even elements of H.R. 1 itself might be
    threatened in the future by an endlessly creative Supreme Court
    majority.
        There is overwhelming support for a constitutional
    amendment among the American people to overturn Citizens United
    and related decisions. It is not supported among Democrats
    only. As Representative Deutch said, it crosses party lines. It
    is felt throughout the country. It is overwhelming. It is
    reflected in 20 states that have passed resolutions calling for
    a constitutional amendment, more than 800 cities and towns that
    have called for a constitutional amendment. I can't strongly
    enough urge this Congress now to take action to pass H.J. Res.
    2 and send it to the states for ratification to restore our
    democracy.
        Thank you very much.
        [The statement of Mr. Weissman follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Mr. Weissman.
        Our next witness is Mr. Bradley Smith. Rarely is a witness
    thanked for coming and complimented by the other side, so you
    are special.
        Bradley Smith holds the Josiah H. Blackmore II/Shirley M.
    Nault Professor of Law position at Capital University Law
    School. He is one of the nation's leading authorities on
    election law and campaign finance, and co-author of ``Voting
    Rights and Election Law,'' a leading casebook in the field. He
    previously served for five years as a member of the FEC and
    Chair of the Commission in 2004.
        He received his J.D. cum laude from Harvard Law School.
        Do any of you ever get accepted at another school?
    [Laughter.]
        And his B.A. from Kalamazoo College.
        Professor, you are recognized.

                       TESTIMONY OF BRADLEY SMITH

        Mr. Smith. Thank you, Mr. Chairman and members of the
    committee.
        I guess I would begin simply by saying that repeatedly
    calling a decision a disaster doesn't really make it so, and we
    haven't really heard much evidence that actually ties the idea
    that people can't enact their preferences to anything that has
    come about from Citizens United.
        In fact, Citizens United has had a number of beneficial
    effects on American society. We were told that it would lead to
    an oligarchy, an entrenched group of people who would strangle
    American democracy. And yet instead, in the years since
    Citizens United, politics in America has been more fluid.
    Congressional incumbent reelection rates have declined. That
    may not be good news for all of you, but it cuts against
    certainly the argument that has been made against Citizens
    United.
        We have seen that either Congress or the presidency has
    changed hands in four of the five election cycles since
    Citizens United. There are more newcomers in Congress by about
    40 percent each time around. That may be good news for some of
    you who are among those newcomers.
        Outsiders such as the President himself, such as at least a
    contender to the President in the general election, Senator
    Sanders, people such as Representative Ocasio-Cortez or former
    Representative Braut have been complete outsiders who have
    dramatically shaken up the system and defeated entrenched
    insiders, typically by spending far less money.
        We find that the trend of more women being elected to
    office has continued, and there are other things that are just
    kind of interesting. For example, the rate of spending increase
    in American politics has actually declined considerably since
    Citizens United. I don't think that is because of Citizens
    United, but it certainly cuts against the notion that this is
    some disaster leading to this massive explosion in spending. It
    is just not really so.
        We find that most money in politics, dramatically so, still
    comes from individuals in amounts limited under the law. The
    vast majority still comes in limited individual contributions.
    But corporate contributions, which make up at most--I don't
    know how we want to calculate it and what we do with this small
    percentage of money, about 2 or 3 percent that is so-called
    ``dark money,'' how much we think that might be corporate
    money. If we take the worst case, so to speak, the highest case
    scenario, we are talking about 5 percent of spending, maybe 6
    percent coming from for-profit corporations. That is hardly
    drowning anybody out. And, in fact, it is a good thing. The
    American people have a right to hear those voices, they should
    hear those voices, and polling data shows that they actually
    want to hear those voices and believe that business has a right
    to comment on issues of concern.
        Finally, it is important to remember what the case was all
    about. It was the position of the United States Government that
    it could censor a book or a movie if that book or movie was at
    any stage produced or distributed with corporate funds, like
    every other book or movie you have ever bought on Amazon or in
    a book store or seen in a theater or seen on cable or streaming
    television. That was the position of the government, that you
    could censor this. In that respect, the position that four
    members of the Supreme Court actually endorsed that is the
    truly radical view that we saw in Citizens United.
        We have heard a lot in both the opening panel and from my
    colleagues here about all these policy initiatives that have
    been blocked, and it is curious to me that they all happen to
    be policy preferences of the American political left. There is
    nothing wrong with the political left having policy
    preferences, but the idea that you are not able to enact your
    policy preferences unless you can kneecap people who oppose
    those is hardly something that the First Amendment endorses.
    Indeed, that is why we have a First Amendment, so you can't
    kneecap your opponents in order to shut them up so that you can
    pass whatever policies you want.
        I find it interesting. We had the NRA used as an example.
    The NRA has 3 to 5 million members. These are U.S. citizens,
    people who are out there, and they care intensely about these
    issues. They talk to their neighbors and they work on these
    issues, and that is why these things sometimes don't come
    through.
        I remind you, it is not impossible to pass legislation.
    Medicare, Social Security, the Voting Rights Act, the Civil
    Rights Act, these things all passed when contributions even
    from individuals were unlimited and almost never reported
    because there was no enforcement mechanism even on reporting.
        So I think when we look at things more rationally, we see
    that while the American people certainly don't like Citizens
    United when they are asked specific questions like ``Do you
    think corporations should be able to speak in elections?'',
    when we ask ``Do you think Citizens United should have been
    able to show its movie?'', we find that majorities, in some
    cases substantial majorities, do, in fact, favor those
    positions.
        So again, I would say Citizens United has been good for the
    United States, but mostly it is really good for the First
    Amendment precisely because it does what the First Amendment is
    supposed to do. It is a check.
        Thank you.
        [The statement of Mr. Smith follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, sir.
        Finally, our last witness is Ms. Ciara Spelliscy. She is a
    Professor of Law at Stetson College of Law in Florida. She
    teaches election law, corporate governance, business entities,
    and constitutional law. Prior to joining Stetson's faculty she
    was Counsel to the Democracy Program at the Brennan Center for
    Justice at NYU School of Law, where she provided guidance on
    the issue of money in politics. She was a staffer for Richard
    Durbin up here on the Hill.
        She received her J.D. from Columbia University and her A.B.
    from Harvard.
        Professor, you are recognized for 5 minutes.

                  TESTIMONY OF CIARA TORRES-SPELLISCY

        Ms. Torres-Spelliscy. Thank you. Good morning. My name is
    Ciara Torres-Spelliscy. I live in a swing district in the swing
    state of Florida. My law students are Republicans, Democrats,
    and Independents, and I am here to tell you that American
    voters are worried about the state of our elections after the
    attacks on our democracy in 2016.
        What American voters see from Congress and from the Federal
    Election Commission is not reassuring. It looks like they
    cannot get out of their own way to protect the integrity of
    American elections. This was true before 2016, but after 2016
    it is nothing short of excruciating to watch Congress and the
    FEC not act in the face of eager enemies.
        Now without a quorum, the FEC is more powerless than ever
    at a time when the 2020 election already has candidate debates,
    large-scale rallies, primary votes, and big political
    fundraising to the tune of over $2 billion already.
        Nearly a decade ago, I told Congress right after Citizens
    United that I could predict two problems with inviting
    corporate money into our democracy: a lack of shareholder
    consent, and a lack of transparency. And I wish my prediction
    had not come true, but it did.
        Today I will focus on the lack of transparency, which is
    better known as the dark money problem. Dark money has
    blanketed our elections since 2008. To date, over a billion
    dollars in dark money has been spent in Federal elections
    alone. With dark money you can see the public dance, but you
    can't see the puppeteer. And after the 2016 election, Americans
    really deserve to know whether any of those puppeteers were
    foreign nationals or foreign governments.
        As I note in my book, Political Brands, we know from the
    redacted Mueller Report, as well as indictments of Russians by
    the Special Counsel's Office, that Russians were trying to
    influence the 2016 election, including by purchasing political
    ads on Facebook with rubles. In nearly any other area of the
    law, what happens with dark money would be akin to money
    laundering. But in election law, most dark money is actually
    legal.
        The FEC is the primary regulator with the ability to stop
    dark money, and instead they have basically done nothing. The
    FEC could have started rulemakings to end dark money even
    before Citizens United, because the problem appeared before
    2010. The typical way that dark money is created is by spending
    through an opaque non-profit, like a 501(c)(4) or a 501(c)(6),
    and the porous rules at the FEC have allowed donors to remain
    anonymous. The only change that has come was at the order of a
    Federal court in CREW v. FEC.
        One thing American voters still do not know is whether dark
    money is hiding illegal foreign money. And because the FEC has
    largely been stuck in deadlocks, even investigations or
    punishment for foreign spending has largely been lacking.
        As I discussed in my first book, Corporate Citizen, in a
    particularly colorful episode, a foreign pornographer spent in
    a Los Angeles election in 2012. This spending violated
    longstanding bans on foreign money in American elections,
    whether they are Federal, state, or local. But the FEC would
    not enforce the law against the foreign pornographer. If the
    FEC is not going to stand up to a foreign pornographer, it begs
    the question who would they stand up against?
        This general lack of enforcement against foreign spending
    has sent a terrible message to anyone who was paying attention.
    The message is that campaign finance laws are basically not
    being enforced at the Federal level by the FEC, and as American
    voters face 2020, the Department of Justice is the only cop
    left on the beat. But DOJ can only enforce willful and
    egregious violations of law. This leaves a vast wasteland of
    unenforced campaign finance laws where cheating and corner-
    cutting is all but invited.
        And this happens as American voters are asked to choose the
    next president, all of the members of the House, a third of the
    Senate, 11 governors, and 45 state legislatures.
        Given the experience of 2016 with Russians breaking
    American election laws with abandon, the lesson for North
    Korea, China, Iran, or any other hostile nation is that
    interference in our elections can be done with little
    consequence.
        So the FEC needs a full complement of commissioners so that
    they can at least act. And if you are serious about reform, you
    need to add an additional seat to the FEC so that, like every
    other Federal agency, they have an odd number of commissioners
    so that they can enforce the law instead of ending in a
    deadlock.
        And you can improve disclosure by either changing election
    laws or changing securities laws, or possibly both. And, of
    course, you could expand what Congress can constitutionally
    regulate if the Constitution is amended to address Citizens
    United and other campaign finance cases like Buckley.
        But in our constitutional system, the fate of the nation is
    in your hands. Thank you.
        [The statement of Ms. Torres-Spelliscy follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you very much.
        We will now have a round of questioning by the members of
    the committee, and I will start with myself. We have 5 minutes
    as well.
        Mr. Weissman, you have a lot of history in corporate
    involvement. Give me a little primer on corporations and their
    involvement in politics and their ability to spend money. Have
    they always been able to spend money in politics? Is it unique
    to America? Do different countries allow them to spend money in
    politics? And what is the growth or diminution of that?
        Mr. Weissman. I think that the statement that was correctly
    read from Justice Scalia in his decision that the original text
    permits corporations to spend, the original text of the First
    Amendment permits corporations to spend money, is inaccurate. I
    think Justice Stevens gave a much richer and more correct
    reading. The Framers never intended corporations to spend
    money, and there are a lot of reasons to think that they
    explicitly did not want them to. Justice Scalia's only
    argument, really, is the lack of evidence, not that there was
    affirmative evidence to enable corporations to spend money.
        As you do know, we do have a history of corporations
    spending money. It varies by state. In the original Gilded Age,
    we had corporations and the robber barons overwhelming
    elections and really running as party bosses. There were
    reforms put in place to curb that activity, and those reforms
    worked relatively effectively throughout much of the 20th
    century.
        Corporate spending itself really had not been given--there
    had been a series of restrictions on corporate spending, and
    the Supreme Court itself in an important decision, Austin, had
    recognized that the unique nature of corporations, their unique
    ability to gather enormous sums meant it made a lot of sense
    for the Congress or localities and states to have the ability
    to restrict corporate outside spending. That was thrown to the
    wind in Citizens United.
        Mr. Smith is correct, we have not seen the torrents that
    were anticipated. We calculate that about half-a-billion
    dollars have been spent by corporations since the Citizens
    United decision was handed down, not a small amount, much of it
    in really significant ways in local and state elections, as
    well as in referenda. We see corporations increasingly exerting
    an overwhelming effect with great harm. That is probably more
    than I can do right now to give you a cross-cultural story
    about it.
        But Citizens United really was a break from precedent, both
    historic jurisprudential precedent, but also from the previous
    100 years of American experience.
        Mr. Cohen. You expressed how much money has been put into
    campaigns through these Super PACs since Citizens United, the
    $7 billion figure I think George mentioned as distinguished
    from the $700 billion figure, whatever, the previous 20 years.
    Is there any data you have to show if that has affected
    Americans' belief that their government is not responsible to
    them?
        Mr. Weissman. In my written testimony I have extensive
    information, and the polling on this is really overwhelming,
    about Americans' deep concern with corruption. Asked by one
    pollster to rate 22 different attributes of American life, the
    campaign spending system comes in last. Only 20 percent of
    people are satisfied in that poll with the current campaign
    system. That actually is a pretty high number compared to other
    pollsters.
        The New York Times found that with near unanimity--their
    quote--Americans want to replace the current finance system.
    The only dispute among Americans they found was whether they
    believe that the current system needs fundamental change or
    should be completely rebuilt. It is hard to know which one is
    the more fundamental thing they are trying to get at.
        But we also see very deep concerns about corruption
    generally and dissatisfaction with American government, and
    really I think a fear that calls into question whether the
    government works for them. They are not wrong being skeptical
    about that.
        Mr. Cohen. Let me ask you, because I only have a little
    time left. You said there are 25 top individuals. Can you give
    me the top 10 names?
        Mr. Weissman. Well, the two top names now are Sheldon
    Adelson and Michael Bloomberg. The top 10 I can't give you off
    the top of my head.
        Mr. Cohen. Thank you.
        Ms. Jayapal's bill is different from Mr. Deutch's. Mr.
    Deutch's strictly deals with campaign finance, and hers deals
    with other issues. I can see a theory that corporations--I hate
    to say it because I don't even like the word anymore, but a
    Dershowitz theory that if it is good for the corporation and it
    is good for the stockholders, then they have a duty to see that
    the business goes further and whatever, putting money into
    politics that might affect their businesses. But how can you
    say that a corporation can express a religious opinion, like in
    Hobby Lobby? Is there any basis to think that a corporation
    should have a right? They are formed partially so they don't
    have to be responsible for liability, immune from liability.
    Why should they be able to have a right on what insurance
    covers?
        Mr. Weissman. Well, I agree and support Representative
    Jayapal's bill. It seems extraordinary to me. But to be clear,
    that was what the Supreme Court held in Citizens United as
    well. If you read the majority's decision, there is a lot of
    concern about discriminated-against minorities not having the
    right to express their feelings, hopes, and aspirations. The
    discriminated-against minorities they are discussing in the
    majority decision are corporations. That is the people they
    thought were being discriminated against in not having the
    ability to express what they feel.
        As you say, they don't have feelings, as Justice Stevens
    expressed in great detail. They don't have feelings, they don't
    hurt, they don't care about the future, they care about profit.
    That was lost entirely in the Supreme Court's decision there,
    and as well as in the Hobby Lobby case and others.
        Mr. Cohen. Thank you, sir.
        Mr. Armstrong is sitting in as ranking member, and I will
    recognize Mr. Armstrong now for 5 minutes.
        Mr. Armstrong. Thank you, Mr. Chair.
        Corporations in my town sponsor baseball fields, youth
    teams, charities, other things. I am incredibly proud of the
    corporate citizens that exist, and without them we would not
    have a lot of the services that exist in my local community,
    and I think that is very accurate with small towns all across
    the country.
        Professor Smith, Citizens United not only allowed
    corporations to spend, but unions too. Is that correct?
        Mr. Smith. Yes.
        Mr. Armstrong. And did the AFL-CIO file a brief in the
    lawsuit?
        Mr. Smith. Yes, it did.
        Mr. Armstrong. It has been suggested by Commissioner
    Weintraub that the existence of any foreign shareholder in a
    corporation--the one-drop rule--should prohibit that
    corporation from making political expenditures. How would that
    affect unions?
        Mr. Smith. Well, there has been a certain effort to whip
    up--I will be very blunt here--I think a kind of shameful
    effort to whip up hysteria against this idea that foreigners
    are coming in to influence our elections. But it is worth
    noting that the AFL-CIO, for example, has at least two dozen
    affiliates that have the term ``international'' right in their
    name, plus many other affiliates that take international
    members as well, and those all pay dues to the AFL-CIO. AFSCME
    has Canadian affiliates and so on. So, yes, to adopt that kind
    of extreme position would essentially shut labor unions out of
    political discussion as well.
        Mr. Armstrong. Do you know how many?
        Mr. Smith. How many members?
        Mr. Armstrong. How many unions?
        Mr. Smith. I don't know the total. Again, AFSCME has at
    least 24 affiliates, at least two dozen affiliates. I remember
    calculating it a few years back. It was like 29 or 30 that just
    had the term ``international'' in the name. In terms of the
    number who have international members, it could be larger.
        Mr. Armstrong. Thank you.
        Do Super PACs disclose their donors?
        Mr. Smith. Super PACs do disclose their donors, the same as
    any other PAC that has any contributor in it who contributes in
    the aggregate over $200 is disclosed.
        Mr. Armstrong. And did Citizens United change any
    disclosure laws?
        Mr. Smith. No, it did not. Those laws were upheld, in fact.
    Some of those laws were challenged and they were upheld in the
    decision.
        Mr. Armstrong. I will go to my next question. You say in
    your prepared testimony that dark money is typically around 3.5
    percent of total spending. How do we know that if it is not
    disclosed?
        Mr. Smith. Sure, that is a good question. You know, we keep
    hearing these huge numbers thrown out. ``Oh, it has been $100
    billion or $1 billion,'' or whatever. That sounds like a lot.
    But if we think about it, it is 2.5 or 3 or 3.5 percent. That
    doesn't sound quite so threatening. And we know that sometimes
    people say, well, we don't know how much there is because it is
    ``dark.'' But, in fact, we do, because spenders have to report
    all that they spend. So we can look at the total amounts that
    are spent. All that dark money means is that an organization
    doesn't have to report the names of each and every donor to
    that organization.
        So even if we assumed all of that were dark money, and some
    of it is not--many of these spenders do disclose donors--we get
    up to that small figure that has been consistently under 5
    percent. And we also find that many of those spenders, by the
    way, are very well known to the public. For example, leading
    dark money groups include groups like the Environmental Defense
    Fund, Planned Parenthood Action Fund, NAACP Action Fund, the
    U.S. Chamber of Commerce, the National Association of Realtors.
    I just don't think that most Americans are sitting around
    going, ``The National Association of Realtors, what are they
    about?'' I think most Americans understand the points of view
    that are being represented in those cases.
        Mr. Armstrong. After Citizens United, are there still
    constitutional limits on what disclosures can be mandated?
        Mr. Smith. There are. Citizens United did uphold existing
    law, but too many people have suggested that gives a green
    light to any kind of disclosure. In Buckley v. Valeo, the
    landmark campaign finance case, and also in numerous other
    cases over the years, McIntyre v. Ohio Election Commission, in
    cases outside of the direct political arena such as Thomas v.
    Collins, the Supreme Court has limited the ability of the
    government to force disclosure of memberships as something that
    infringes of First Amendment rights of association, petition,
    and speech.
        Mr. Armstrong. Where does the majority of speech about
    candidate spending on campaign ads come from, both before and
    after Citizens United?
        Mr. Smith. The vast majority, as I indicated in my opening
    comments, does indeed come from individual contributions to
    campaigns, and also to PACs. Some people seem to think that
    PACs are corporate money, but they are also individual
    contributions. It is better to say that a corporation sponsors
    a PAC into which employee shareholders can contribute. But
    again, that is individual money and not money from the
    corporate treasury.
        Mr. Armstrong. And what role do you think Citizens United
    plays in the trend of billionaire candidates like President
    Trump in the last election, and in this one Michael Bloomberg
    and Tom Steyer, self-funding candidates in expensive campaigns?
        Mr. Smith. Well, one thing is that, of course, that was
    authorized. Individuals prior to Citizens United, individuals
    had the right to spend as much as they wanted. So that really
    didn't change by Citizens United. Given the short time, I would
    just say that I think we can see that it hasn't really worked.
    I mean, Mr. Steyer spent a great deal of money and doesn't have
    very much to show for it. You still have to have a winning
    message, and all that money does is let the American people
    hear, and that is a good thing. The American people have a
    right to hear. But it doesn't cause them in some way to vote.
        Mr. Armstrong. With that, I will be interested to see if
    Mr. Bloomberg is still second now that he is actually running
    for president. That will be interesting to follow.
        Thank you, Mr. Chair.
        Mr. Cohen. Thank you, sir.
        Mr. Raskin, you are recognized for 5 minutes.
        Mr. Raskin. Mr. Chairman, thank you.
        Welcome to all of our distinguished witnesses today, and
    all of the natural persons who have come to participate in
    today's proceeding.
        The first thing that I want to point out is that Citizens
    United did not enlarge the free speech rights of any citizen in
    the United States, not even CEOs or corporate executives who
    could spend already whatever they wanted as independent
    expenditures under Buckley v. Valeo. All that Citizens United
    did was to transform every corporate treasury in America into a
    potential political slush fund and thereby authorize and
    empower the CEOs of the corporations to spend whatever they
    wanted of other people's money in the corporate treasuries in
    political campaigns.
        This declaration did transform, to my understanding, two
    centuries of jurisprudential understanding of what a
    corporation is. You can go back to Chief Justice John
    Marshall's opinion in 1819 in the Dartmouth College v. Woodward
    case, where he said that a corporation is an artificial entity,
    invisible, intangible, existing only in contemplation of law,
    possessing only the rights conferred upon it by the state
    legislature and not the constitutional rights of the people.
    And yet the Roberts court in Citizens United endowed private
    corporations, these invisible, intangible, artificial entities,
    with the political rights of the people, essentially arming the
    CEOs with the power to spend other people's money, as Justice
    Brandeis termed it, in political campaigns. And for all of the
    reasons stated by the witnesses, that has occasioned a dramatic
    change in the character and the quality of American politics.
        Now, I favor a constitutional amendment for the same reason
    that I support all the constitutional amendments that have
    reversed reactionary jurisprudence by the Supreme Court. That
    is how we got women's suffrage in the 19th Amendment which
    toppled the Supreme Court's decision in Minor v. Happersett,
    saying that women did not get the right under the 14th or 15th
    Amendment. The 14th Amendment, and the 15th and 13th, of
    course, reversed the Supreme Court's reactionary decision in
    the Dred Scott case before the Civil War. It is how we got the
    26th Amendment. It is how we got the 24th Amendment. Most of
    our amendments have been democracy-deepening, suffrage-
    enlarging, democracy-perfecting amendments where the people
    have to overturn pinched and reactionary understandings of the
    Supreme Court.
        But until we get there, I wanted to take up an issue that
    comes out of Citizens United, because Justice Kennedy's conceit
    in his majority opinion is that the corporations are speaking
    for the shareholders, the corporations derive their First
    Amendment political rights from the First Amendment rights of
    the human beings who actually own stock in the corporation. But
    there is a problem, which is that the corporations are spending
    all of this money and putting money into political campaigns
    and dark money channels and so on without ever consulting the
    shareholders themselves; and, in fact, in most cases not even
    notifying the shareholders. And they have been doing everything
    in their power to fight in both the SEC and the FEC efforts to
    get just notice to people of how their money in the corporation
    is being spent.
        I introduced a measure which became part of H.R. 1 which I
    call Shareholders United. Shareholders United says that no
    corporation shall be allowed to spend any money in politics
    until you have first notified the shareholders of the proposal
    and they are authorized in advance by majority vote that their
    money be spent in a political campaign.
        I am wondering if each of you, if you could go quickly--and
    forgive us because we have our 5-minute stricture here. But
    would you agree that as long as we are living under the regime
    of Citizens United, that the shareholders should have the right
    to be apprised of proposed political spending by corporations
    of their money, and they should have the right to vote on it? I
    know there is an argument that there should have to be a 100
    percent vote, but at the very least there should be a majority
    vote before the corporation goes ahead and spends their money.
        And I could start with you, Madam Chair.
        Ms. Weintraub. Yes.
        Mr. Weissman. Absolutely. And as you know, more than a
    million people have requested the SEC to issue a rule to do
    exactly what you are suggesting.
        Mr. Raskin. Professor Smith, do you agree?
        Mr. Smith. No. This is a complex question of corporate
    governance and there are many things corporations do, including
    things that affect politics, that they don't require
    shareholder approval for.
        Mr. Raskin. Okay. And Professor Spelliscy?
        Ms. Torres-Spelliscy. I wholeheartedly endorse your bill. I
    think shareholders should have the right to consent to
    corporate political spending, and that would bring American law
    in line with the U.K., where shareholders in U.K. companies do
    have the right to pre-approve corporate political spending.
        Mr. Raskin. Okay.
        Mr. Cohen. Thank you, Mr. Raskin.
        Mr. Raskin. I yield back, Mr. Chairman.
        Mr. Cohen. Mr. Cline, you are recognized for 5 minutes.
        Mr. Cline. Thank you, Mr. Chairman, appreciate it.
        I would note that one of the things that we have that the
    U.K. doesn't have is the First Amendment.
        The majority in Citizens United maintain that political
    speech is indispensable to a democracy, which is no less true
    because the speech comes from a corporation. The majority also
    held that the BCRA's disclosure requirements as applied to the
    movie were constitutional, reasoning that disclosure is
    justified by a governmental interest in providing the
    electorate with information about election-related spending
    resources.
        The Court also upheld the disclosure requirements for
    political advertising sponsors and upheld the ban on direct
    contributions to candidates from corporations and unions.
        What it did not do is overturn centuries of law. Rather, it
    overturned portions of McCain-Feingold which had become law in
    2002, another law that went into effect in the 1940s, and two
    Supreme Court decisions in whole or in part, Austin v. Michigan
    Chamber of Commerce from 1990 and McConnell v. FEC from 2003.
        So I would ask Professor Smith, in your prepared testimony
    you quote part of the oral argument in Citizens United in which
    the government argues that as a matter of constitutional law it
    can ban books or movies if corporate resources are used in
    their production or distribution. Is that correct?
        Mr. Smith. Yes.
        Mr. Cline. And can we talk about whether this is really a
    danger?
        Mr. Smith. Yes. Citizens United was rescheduled after that
    first oral argument, and in the second oral argument then-
    Solicitor General Kagan argued, well, we would never actually
    do that. But, in fact, the FEC from time to time has done that.
    In a little-noticed 1987 advisory opinion, the FEC informed
    U.S. News and World Report that their publication of a book
    would not be exempt under the press exemption because it was
    not a periodical, that it would therefore be potentially
    illegal to distribute a book.
        Now, maybe that wasn't noticed so much because in the end
    U.S. News wasn't really going to do that. It was dismissed on
    other grounds. But the FEC made that point.
        Just in the last decade, in 5642, the FEC spent almost two
    years investigating publication and distribution of a book, one
    that was written by George Soros, and it was eventually
    dismissed. But it should be noted that the General Counsel in
    that case recommended that the FEC find a violation due to
    distribution of a book about policy, a book called The Bubble
    of American Supremacy, because it included such radical
    statements as ``It is not enough to defeat President Bush at
    the polls,'' and ``We can regain the moral high ground only by
    rejecting President Bush when he stands for reelection,'' and
    that was considered enough that that book could have been
    potentially banned.
        So I do think it is a real issue.
        I would also note that when Justice Kagan, or now-Justice
    Kagan, then-Solicitor General Kagan, was asked what about
    pamphlets, she said pamphlets we ban, we definitely go in for
    pamphlets.
        I have here a copy of Common Sense, the great revolutionary
    tract by Thomas Paine. It is 54, 58 pages. That includes a
    couple of cover pages here. Is this a book or a pamphlet? I
    will ask you all to vote for it because you are the legislators
    who will get to decide whether or not this can be published or
    whether or not this can be banned as a pamphlet.
        Mr. Cline. Thank you.
        Some of our Democratic colleagues in the Senate have
    previously introduced a constitutional amendment to undo or
    overturn Citizens United. The amendment would allow Congress to
    regulate the giving and spending of money on political advocacy
    but explicitly carves out the press. Do you have any views on
    that approach?
        Mr. Smith. Well again, if I may, Mr. Cline, I want to
    briefly address something that my old colleague--we were law
    professors going back. You got your J.D. from Harvard, too; is
    that right?
        I think, Mr. Chairman, that we should probably note that
    again.
        But in any case, one thing I did want to comment, though,
    is that who has benefitted--we haven't seen this torrent of
    money from Fortune 100 companies. The corporations that have
    benefitted are small corporations, and most of those
    corporations can't afford to operate a PAC, they can't afford
    to have a lobbyist here, and those are the corporations that
    are really benefitting from this, and those are closely held
    corporations where I think we can usually find the shareholder
    benefits.
        Now, your specific question regarding the press, I think
    the Supreme Court has never really held that the press has
    rights that other American citizens do not, and there is
    polling data that shows if you ask people should we limit
    spending but the press is exempt, support for limiting spending
    drops dramatically. People don't think the press should have
    exemptions. In fact, less than 50 percent support restricted
    spending if the press is exempt. They don't see any reason why
    these guys, just because they are members of the National Press
    Club, get to talk about politics, spend a ton of money, Jeff
    Bezos can buy a newspaper and spend a ton of money, but
    everybody else could not. Again, the Supreme Court has never
    recognized some specific right. The press, in other words, is
    the ability of all Americans to speak. It is not a right that
    adheres to a certain group of people who got a degree from
    Columbia Journalism School.
        Mr. Cline. Thank you, Mr. Chairman.
        Mr. Cohen. Thank you, sir.
        Ms. Scanlon, you are recognized for 5 minutes.
        Ms. Scanlon. Thank you very much.
        I wanted to focus on something that Commissioner Weintraub
    mentioned earlier, and that is presidential inaugural funds. I
    introduced a bill which was folded into H.R. 1 called the
    Inaugural Fund Integrity Act, because of concerns that have
    come out about donations to and spending by these funds. Those
    funds have grown exponentially during the time since Citizens
    United came out. So the Obama inauguration fund in 2012, I
    guess, set a $53 million record, and the Trump inaugural fund
    just back in 2016 raised over $107 million. So 250 people or
    corporations gave 91 percent of those funds, and 47 people or
    corporations gave more than $1 million.
        There are concerns about these inaugural funds because, in
    a way, if you are donating to a candidate you are making a bet.
    There is no guarantee they will get in. But if you are donating
    to an inaugural fund, that person has already been elected, and
    it raises some really serious concerns about transparency and
    quid pro quo, et cetera.
        I would like to ask unanimous consent to enter into the
    record an Open Secrets article entitled ``Companies That Funded
    Trump's Inauguration Came Up Big in 2017.''
        Mr. Cohen. Without objection.
        [The information follows:]

                      MS. SCANLON FOR THE OFFICIAL RECORD

    =======================================================================
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. And let me ask, was that a quid pro quo in
    Sondland? Was that in connection with giving money to the----
        Ms. Scanlon. I believe he gave $1 million.
        Mr. Cohen. Yes, and that was a quid pro quo. Thank you.
        Ms. Scanlon. But generally, the purpose in drafting the
    Inaugural Fund Integrity Act was to put some limits on both
    contributions to and spending by these inaugural funds to try
    to block foreign corporations and foreign nationals from giving
    money, and we have certainly heard of some issues with that
    with respect to Mr. Parnas, to block straw donors and to limit
    contributions by corporations.
        So in your experience, Commissioner Weintraub, can you tell
    us what kinds of issues you are seeing with respect to
    transparency and donations in these inaugural funds?
        Ms. Weintraub. Well, as you know, Congresswoman, there
    really is not that much law governing inaugural funds, which is
    interesting in light of the point that you just made, that
    people have already been elected, so there is no risk there,
    you know who you are giving the money to.
        I am concerned that there is, for example, no limitation on
    contributions in the name of another, which is a core provision
    of the rest of the Federal Election Campaign Act, and that is
    not part of the restrictions on inaugural funds. There is a
    limit that says you are not supposed to get foreign money, but
    then there is no way of really getting behind that because you
    don't have a restriction on contributions in the name of
    another. So how do you know that the people who say they are
    giving the money are actually giving their own money and that
    it is not coming from a foreign source or some other source?
        So I think there are big transparency problems with the
    current regime, and I applaud you for your efforts to try to
    fill some of those holes.
        Ms. Scanlon. So basically, if we did some of what the
    Inaugural Fund Integrity Act tries to do, which is apply the
    restrictions that apply to other campaign finance to inaugural
    funds, that would help the process?
        Ms. Weintraub. Absolutely.
        Ms. Scanlon. Okay. And it just seems like that is important
    this year given the fact that someone will be elected president
    and we will be dealing with another inaugural fund, so now
    might be a good time to put some brakes on what is going on.
        Mr. Weissman, do you have anything to add there?
        Mr. Weissman. First to applaud you for the effort, and also
    to sort of elaborate on it. We don't know where the money is
    spent, for one thing. So in terms of the quid pro quo analysis,
    or more generally a richer corruption analysis, there is worry
    about issues of self-enrichment. If a donor knows that not just
    a committee but the president or people around the president
    may benefit, as, in fact, was the case, because we know that
    some of that money was wasted at the Trump Hotel, that is a
    real incentive to give the money in expectation of some policy
    coming out of it.
        That Open Secrets article that you entered into the record
    I believe refers to, for example, a million-dollar contribution
    from Dow Chemical. Dow Chemical soon found that it was able to
    get benefits on specific regulatory matters on pesticides out
    of the Trump EPA. It was exactly the kind of corruption that
    should be intolerable in our system, and we do need safeguards
    to prevent this from going forward.
        Ms. Scanlon. Okay. Thank you.
        I yield back.
        Mr. Cohen. Ms. Dean, you are recognized for 5 minutes.
        Ms. Dean. Thank you, Mr. Chair. I appreciate the chance to
    hear from the testifiers to talk about this important issue.
        I think I will start, please, with Commissioner Weintraub,
    and this reflects some of the comments we just heard from
    Professor Smith.
        Some say that the proliferation of private money in our
    politics is not the result of Citizens United. Citizens United
    held that corporations have a First Amendment right to spend
    sums independently to support or oppose candidates for office,
    yet few for-profit corporations spend money on political
    campaigns in their own names, so Citizens United can't be all
    that bad they say.
        However, a simple review of the numbers shows that there is
    a problem, and it is tied directly to the Supreme Court's
    ruling. In the pre-Citizens United 2008 presidential election,
    outside spending totaled about $338 million. We saw that within
    your testimony. And in the 2012 presidential election, the
    first after the Supreme Court's decision, outside spending
    totaled over $1 billion.
        Can you speak to how Citizens United, which is the premise
    of this underlying hearing, changed the influence of money in
    the political process despite a dramatic increase in overt
    corporate expenditures?
        Ms. Weintraub. Well, there are a variety of ways that
    Citizens United has had this huge impact, which I think
    everybody gets that. In the first place, when corporations
    spend--and corporations can give to Super PACs. Super PACs
    disclose their donors, but the corporations often will be a
    shield against disclosing who really is behind the money. So
    you'll get the ABC Super PAC reporting that they have a
    million-dollar contribution from the ABC 501(c)(4), and who is
    giving money to the ABC 501(c)(4)? Well, we don't know that. So
    there is a huge transparency problem that arises immediately
    from letting corporations give.
        But as I said, really I think the biggest impact of
    Citizens United is that it really took the gloves off with the
    broad language in Citizens United about how ingratiation and
    access can't possibly be corrupting. First of all, I think that
    flies in the face of most people's commonsense understanding.
    If it is corrupting to give $3,000 directly to your campaign
    account, how could it not be corrupting to give $3 million to a
    Super PAC that is doing nothing but trying either to elect you
    or to defeat you? How does that not have any potential for
    corruption? I think most people really don't get that and think
    it doesn't really make sense, and that is part of why it is
    such an unpopular decision, because it flies in the face of how
    people think about corruption.
        But this broad language really emboldened a lot of folks
    who I think before were thinking, well, boy, somebody might
    think this is corrupting if I gave a million dollars to try and
    defeat a candidate or to elect a candidate, so maybe I
    shouldn't do that. Now they find out, whoa, I can't possibly be
    held accountable for that, so therefore I am going to up my
    giving. All this freedom, it only affects this very narrow band
    of people who have a million dollars to put into a campaign, or
    in some cases multi-million dollars. That is not freedom for
    most Americans. Most Americans aren't going to be able to
    partake of that additional liberty that the Supreme Court has
    granted them, and it does reframe the debate. It does involve
    billionaires just sort of dominating the political discourse in
    ways that are sometimes not transparent.
        We have seen folks go through incredible permutations of
    moving money from one organization to another organization to
    another organization because they are afraid we might pierce
    the first veil, but then we won't get through the second or the
    third or the fourth veils. There is somebody who is litigating
    this up to the Supreme Court right now to try and hide the
    money. So there has been an explosion in the role of these
    mega-donors, and I think that really has been the biggest
    impact.
        Ms. Dean. I have just a little bit of time left. There is
    so much more I would like to ask you, but I did take a look at
    what you said in your testimony about how the impact of H.R. 1
    would be helpful in this area. Quickly, on the issue of
    coordination, you just described very logically how things are
    non-transparent and hidden. How about the notion of if I say it
    publicly, we didn't coordinate? Can you speak to the problem of
    that Super PACs cannot coordinate with candidates, and yet how
    we so easily see folks getting around that?
        Ms. Weintraub. Well, the coordination rule was written
    before Super PACs existed, and despite my repeated efforts to
    launch a rulemaking to update them in light of Citizens United,
    I have never been able to get the four votes to do that at the
    FEC. I feel compelled to say that all of the things that
    Professor Torres-Spelliscy was complaining about at the FEC, I
    was on the other side and trying to get those things done. We
    have candidates who show up at Super PAC events and tell their
    supporters that is my favorite Super PAC, you can go ahead and
    support them and you will be supporting me, and people post
    things publicly and try to get around it. Well, it is not a
    secret conversation. I am telling the world that I love that
    Super PAC, I am telling the world that here is what would be
    useful to me, I am posting this video on my webpage.
        Some of it is silent. There is no purpose in having this
    roll up on anybody's webpage other than for somebody else to
    just lift it and incorporate it into a campaign commercial on
    their behalf.
        Ms. Dean. Thank you very much.
        Has my time expired, Mr. Chairman? Thank you very much for
    your indulgence.
        Mr. Cohen. Thank you, Ms. Dean.
        Ms. Escobar, you are recognized.
        Ms. Escobar. Thank you, Mr. Chairman.
        And thanks so much to our panelists, really appreciate you
    all today.
        Ms. Weintraub, I have some questions about the Commission,
    just some things that I am really curious about.
        When was the last time the Commission met with a quorum?
        Ms. Weintraub. That would have been August, August of 2019.
        Ms. Escobar. Okay. And how many cases are awaiting a
    hearing?
        Ms. Weintraub. We have roughly 300 enforcement matters, and
    right now over 100--last time I checked it was 119 of those
    were awaiting some kind of decision from the commissioners,
    which it requires us to have four commissioners to make that
    decision.
        Ms. Escobar. And how far back in terms of the cases that
    are waiting to be adjudicated by you all, how far back do those
    complaints go in terms of when they were first reported to the
    FEC? Do you know?
        Ms. Weintraub. There are a variety of beginning dates for
    the complaints. There is a five-year statute of limitations,
    and particularly in the reporting area sometimes there is a
    continuing violation even after the event that you are
    reporting happened, you have an ongoing obligation to report
    what money came in and what money went out. So sometimes we are
    able to extend. Sometimes we get tolling agreements. But for
    the most part, we are limited to a five-year statute of
    limitations, and the clock is ticking on a number of the cases
    that are sitting in front of us right now.
        Ms. Escobar. And I will give you an example of why there is
    probably no incentive for the President and others to ensure
    that we have a functioning FEC. In my community of El Paso,
    Texas, the President came and had a campaign rally, and he owes
    the City of El Paso over half-a-million dollars for all of the
    services that the city, that the local government had to
    provide. The Center for Public Integrity back in June actually
    reported that this is not a single instance where a campaign
    has failed to pay its bills, its outstanding debts. In fact,
    for the Trump Campaign this is a pattern, and there are a
    number of local governments.
        So it is a vicious cycle, unfortunately. There is no
    incentive for the President to want accountability by having a
    fully seated, fully functioning FEC because he might be held
    accountable, and we know how he feels about accountability.
        Ms. Weintraub. I don't want to comment on any particular
    case, but let me just say that when we lost the quorum last
    August when one of my colleagues decided to resign, I had two
    other colleagues who resigned two years ago and three years
    ago, respectively. So there was a very long run-up to this when
    we had two vacancies, one D, one R, when this could have been
    fixed so that we wouldn't have been in this situation last
    August when the most recent commissioner left. Why those seats
    weren't filled for two and three years, I really can't tell
    you.
        Ms. Escobar. Yes, we can only wonder why.
        Thank you so much for your response, Ms. Weintraub.
        Mr. Weissman, we have seen incredible, hugely consequential
    involvement from Russia in our elections, and this meddling in
    our elections is not limited to Russia. We now know after what
    happened yesterday, the acquittal, that there will not be
    accountability for inviting foreign assistance into our
    elections. At least for the President, there is no
    accountability.
        So many of us are obviously very concerned about outside
    involvement in our elections. You mentioned that Citizens
    United allows foreign actors to influence those elections as
    well. Is that correct?
        Mr. Weissman. Not legally, but yes.
        Ms. Escobar. Can you expand on what that involvement might
    be?
        Mr. Weissman. The reporting that has come out from the Lev
    Parnas tape is really instructive about how this all might go
    down. That tape, where most of the attention was focused on the
    conversation about Ukraine, it was really a donor event. It was
    a Super PAC donor event, actually, where the donors were given
    direct access to the President. The New York Times reported
    they were given access to go and pitch, as if they were on
    Shark Tank, their preferred policy preferences. A couple of
    those donors were Lev Parnas and Igor Fruman, who, according to
    the indictment against them, had donated money from a foreign
    source that they had laundered through an LLC.
        In this instance it was discovered. You have to assume that
    in most instances it is not going to be discovered.
        Also present at the event was a Canadian steel mogul who is
    not permitted to give money to affect U.S. elections but was
    able to use his U.S. subsidiary to run money to U.S. elections.
    So there are a lot of mechanisms, some of which are legal and
    some of which are not legal but have been super-powered by
    Citizens United, and we have to assume it is happening much
    more than we know.
        Ms. Escobar. Thank you so much.
        I am out of time. I yield back. I appreciate it.
        Mr. Cohen. Thank you.
        Ms. Jackson Lee.
        Ms. Jackson Lee. I want to thank all of the witnesses for
    their commentary today.
        Let me say that I am a proud co-sponsor of H.R. 1, which I
    hope the Senate turns on the light and allows us to pass that
    legislation, because some of this will change. Some have argued
    that the Court should revisit the question, but we know the
    skewing of the Court now, unfortunately.
        I am just going to ask a brief question and then a pointed
    question to the Commissioner. Thank you for your leadership.
        After Citizens United, can you state or re-state what you
    think about, very briefly, the amount of money that is now in
    the political process?
        Ms. Weintraub. Well, the amount of money always goes up, so
    let's start there. But I think what we are seeing is a shifting
    of money. As I pointed out in my testimony, in the most
    competitive Senate races, particularly in years where it looks
    like control of the Senate is up for grabs, that is where all
    the outside spending goes. And the outside spending in six out
    of ten, seven out of ten, depending on which year you look at,
    has dwarfed the amount the candidates are spending themselves,
    which is really kind of astonishing if you think about it. You
    are out there campaigning, and then somebody else is out-
    spending you.
        Ms. Jackson Lee. Meaning it dwarfs the amount that the
    candidate is spending?
        Ms. Weintraub. Yes.
        Ms. Jackson Lee. It is more than what the candidate is
    spending.
        Ms. Weintraub. Yes.
        Ms. Jackson Lee. Okay. And therefore the voice of the
    candidates, plural, may be silenced or blocked out because of
    some special-interest undercover PAC that one has never heard
    of, but they are coming after you, whoever that is.
        Ms. Weintraub. And because the rules on PAC disclosure were
    designed for a time when these Super PACs didn't exist, the
    PACs aren't on the same disclosure schedule as the candidates
    are, and some of them have been very clever about making sure
    that they don't have to report up until after the election
    itself.
        Ms. Jackson Lee. Thank you. Thank you for your service.
        Let me use this example. A day or two ago we heard a very
    passionate statement on the floor of the United States Senate
    from a senator who offered his religious beliefs and his
    heartfelt analysis on his decision to vote for the conviction
    of the President of the United States under Article 1. Soon
    thereafter, he received an onslaught of attacks. One, Trump Jr.
    tweeted after Romney announced his decision that he was too
    weak to beat the Democrats, so he is joining them now, he is
    officially a member of the resistance and should be expelled
    from the GOP. Trump Jr. then started tweeting ``#ExpelMitt''
    and later tweeted that Romney should be expelled from the
    AtSenateGOP. Ingraham called Romney ``the ultimate selfish,
    preening, self-centered politician. If he were up for
    reelection this year, the people of Utah would have their own
    payback against him because they were defrauded by Romney.''
        Now, people have argued that Citizens United provides for
    free speech. Certainly, the Senator has a right to free speech.
    My question quickly to Mr. Weissman and the Professor, to
    answer the question if this individual was up for reelection in
    2020, having exercised free speech, free speech Citizens
    United, how do you think that would be skewed with this kind of
    onslaught so that his voice could not truly be heard? If you
    would answer that question, my time is running and I would like
    to share it between you and the Professor. Thank you.
        Mr. Weissman. Yes. So very quickly, it is entirely
    appropriate for the people of Utah to make a judgment about
    what Senator Romney did. It is not entirely appropriate for
    giant Super PACs to come in and out-spend him, which, as you
    are implying, is a virtual certainty were he up for reelection
    in this coming term.
        Ms. Jackson Lee. Silencing his voice.
        Mr. Weissman. Overwhelming it at least.
        Ms. Jackson Lee. Professor?
        Mr. Smith. I will note first I served as counsel----
        Ms. Jackson Lee. I'm sorry.
        Mr. Smith. I'm sorry, the other professor.
        Ms. Torres-Spelliscy. Thank you. So, if I may, since I have
    not had many chances to talk, pay-to-play hurts honest business
    people because the honest business person wants to be judged by
    the metric of the quality of their goods and services. But pay-
    to-play skews that entire system by privileging those who will
    stay at the Trump Hotel or pay an emolument, and that is a
    skewing not only of the political system but of the economic
    system as well.
        Ms. Jackson Lee. So do you have an answer about Mitt Romney
    and the amount of money?
        Ms. Torres-Spelliscy. Because I work with a non-partisan
    non-profit, I am going to demure on that.
        Ms. Jackson Lee. Well, let me thank the gentleman from
    Public Citizen for giving me the answer, and I thank all of you
    for providing your insight to this very important question.
        Mr. Chairman, I yield back.
        Mr. Cohen. Thank you, Ms. Jackson Lee.
        Mr. Swalwell I believe is next.
        Mr. Swalwell. Thank you, Chairman, for hosting this panel.
    And thank you to our panelists.
        I believe, having been in Congress now for seven-plus
    years, that it is dirty money and dirty maps that keeps us in
    Congress from reaching the consensus that our constituents have
    reached. On most issues, the American people are actually not
    really divided. They think we should have background checks,
    over 80 percent. They believe we should do overwhelmingly
    something about climate. They want to have universal access to
    health care. Yet, when we convene in Washington, we find people
    that cannot work and meet that consensus.
        Having been here and seen the power of the outside groups,
    I know that the single reason we can't find that consensus is
    the fear that if you were to speak out against your party--
    particularly I see this on my Republican colleagues' side--you
    will be primaried. You are not going to lose your job to a
    Democrat. You are going to lose your job to someone who is more
    conservative, and that is the power of outside money. And it is
    also the power of dirty maps drawn by politicians to protect
    themselves and their friends, and we are interested in doing
    all we can to reduce the influence of that.
        Now, both Republicans and Democrats have gone to online
    platforms that encourage small-dollar contributors, and I think
    that is great that smaller dollars can be empowered. But I do
    wonder if anyone could address whether you see ways,
    considering that foreign money is flowing into our elections,
    that because of the reporting requirements for smaller-dollar
    contributions are not as transparent, that that could be
    manipulated to allow foreign contributions to come in.
        Commissioner, I will let you take a crack at that first.
        Ms. Weintraub. Well, of course, the committees have an
    obligation to ensure that they are not taking foreign money. I
    would argue that that obligation goes up with a larger
    donation. So if you are getting a million-dollar donation, then
    you had better make darn sure, if you are a Super PAC, that
    that money is coming from a good place. In fact, we saw an
    example of this just recently with a Super PAC that was
    supporting Jeb Bush in the 2016 election that took a $1.3
    million donation from a domestic subsidiary of a Chinese
    company, and it was the Chinese board members who had requested
    it, at the request of Neil Bush, who was also on the board.
        So we are seeing foreign money come in through corporate
    entities. I do worry about what is behind the small donors. We
    don't see the names on the small donations.
        Mr. Swalwell. I am talking about--Super PACs are their own
    issue. I am talking about the candidates' campaign committees,
    because I am worried that because of the lack of transparency
    requirements for small-donor contributions--I believe it is
    $200 and less--that that could be a way, if you have a campaign
    that is not checking, confirming, or even if they are in on it,
    that is a back door around the rules and that foreign
    contributions could make their way in. Is that a concern that
    you share?
        Ms. Weintraub. It is, because we don't see those names, so
    we don't know where the money is coming from.
        Mr. Swalwell. Also I wanted to raise a concern about
    foreigners working with U.S. campaigns, as you saw in 2016. In
    2016, Congress had not imagined prior to that election that
    campaigns would take assistance from foreign governments and
    not at least report the outreach. I have since introduced
    legislation that was included and passed in the House of
    Representatives that puts a duty to report on an individual if
    they receive campaign assistance, or even an offer of dirt on
    your opponent who you should know to be an agent of a foreign
    power.
        Is there anything else you think we could do to put a duty
    on people where we otherwise saw people in the past rely on the
    honor code and just do the right thing? What can we do now to
    ensure that the FBI would be notified of something like that?
    For anyone who wants to take a crack at that.
        Ms. Weintraub. As I said in my earlier testimony, one thing
    that I think would help would be putting a responsibility on a
    U.S. citizen to sign under penalty of perjury that they have
    checked and they have verified that there is no foreign money
    coming into the campaign accounts.
        Mr. Swalwell. Thank you, and I yield back.
        Mr. Cohen. Thank you, Mr. Swalwell.
        We are not going to have a second round, but I will do
    this. Normally if we have a second round, it is 5 minutes. If
    any member wants to ask a question, not make a statement but
    ask a question, we will entertain one question per member so we
    can tie up loose ends.
        Does anybody want to ask a question?
        Mr. Raskin, you are recognized for a question.
        Mr. Raskin. Give me a second to compose my interrogatory
    thought, Mr. Chairman.
        Given that we live in an age of propaganda and fake news
    and disinformation, I am wondering, for any of the majority
    witnesses--forgive me, Mr. Smith--to what extent Citizens
    United figures into the spending of money to confuse the public
    and to add to the propaganda? Is there something about the way
    that money has been spent under Citizens United that
    contributes to the thick fog of propaganda that overhangs our
    politics today?
        Ms. Weintraub.
        Ms. Weintraub. I think anything that undermines disclosure
    makes it harder for us to find out who is behind what we are
    seeing online. I mean, people get all sorts of information
    online, and I don't think anybody wants to get their news from
    a Russian troll farm, but people didn't realize that is where
    they were getting the information from last time. So to the
    extent that Citizens United, as I have said, has undermined
    disclosure, I think it has also contributed to that problem.
        Mr. Raskin. Dr. Fiona Hill in her testimony described to us
    that Russia is the world's largest Super PAC today, that it
    basically operates like a Super PAC in terms of funneling money
    and propaganda into our politics, and other societies too.
        Mr. Cohen. We will call that a question, and then we are
    going to let Mr. Weissman respond, if he wants to.
        Mr. Weissman. I am ready. I think two points come to mind.
    One, as Commissioner Weintraub said, there is an intersection
    between the general cultural impact of Citizens United and the
    rise of online advertising, particularly as it relates to lack
    of disclosure. So the system we have for disclosure is
    basically based on focusing on TV ads, and now we have moved to
    where TV ads are being competed with in importance for online
    advertising, huge amounts of money coming in. The disclosure
    system is really totally inadequate, and I think people are
    being confused by that.
        There is another component of this. I wouldn't want to call
    it propaganda necessarily, because there is a role for negative
    advertising and conflictual advertising in speech for sure. But
    what Citizens United has done--and Professor Smith's data I
    think are misleading but all correct. What it has done is lead
    to a rise, a significant rise in outside spending. Outside
    spenders are different than candidate spenders in a variety of
    ways.
        But most significantly perhaps is that they focus
    overwhelmingly on negative attack ads. So about 85 percent of
    outside spending is devoted to negative attack ads; half or way
    less by candidates. Again, there is an appropriate role for
    drawing distinctions. I think most Americans feel like we have
    way tipped the balance in terms of that kind of advertising. It
    is highly emotional in appeal, not really very communicative
    around policy or substance, and I think not that that kind of
    speech should be censored, but if we are looking at the overall
    effect, it has been unhelpful and an unhealthy effect for our
    democracy, and it has certainly contributed to the deep
    skepticism about how our politics work and the future and
    reliability of our democracy.
        Ms. Torres-Spelliscy. I guess I would just add that one of
    the things that you could have done in 2010 in the Disclose Act
    is clarify what counts as foreign for corporate purposes. That
    clarity is still needed in the law.
        And I would also add that Lev Parnas made a calculated risk
    that his corporate spending wouldn't send off any warning signs
    when he spent through a Super PAC. The indictment alleges
    against him that he has funneled at least $1 million of foreign
    money into both state and Federal elections, which I will
    reiterate is illegal, whether that money is going into a state
    election or a Federal election.
        Mr. Cohen. Thank you.
        Ms. Scanlon, you are our closer.
        You are good? Okay.
        Thank you very much to all of our witnesses.
        This concludes today's hearing.
        We have statements for the record from Citizens United
    Action Fund and a letter from Free Speech for People, which we
    would like to submit for the record.
        Without objection, so done.
        [The information follows:]

                       MR. COHEN FOR THE OFFICIAL RECORD

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        Mr. Cohen. This concludes today's hearing. I want to thank
    everybody.
        Without objection, every member will have 5 legislative
    days to submit additional written questions for the witnesses,
    which we will submit to you.
        With that, we are done. Thank you.
        [Whereupon, at 11:52 a.m., the hearing was adjourned.]

                                    APPENDIX

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