[Senate Hearing 117-331]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 117-331

                        S. 443, THE DISCLOSE ACT

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

                                HEARING

                               BEFORE THE

                 COMMITTEE ON RULES AND ADMINISTRATION
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION
                               __________

                         TUESDAY, JULY 19, 2022
                               __________

    Printed for the use of the Committee on Rules and Administration
    
    
                  [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]    
    

                  Available on http://www.govinfo.gov
                 
                              ___________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
48-251                    WASHINGTON : 2022                  
                 
                                  
                 
                 
                 COMMITTEE ON RULES AND ADMINISTRATION

                             SECOND SESSION

                  AMY KLOBUCHAR, Minnesota, Chairwoman

DIANNE FEINSTEIN, California         ROY BLUNT, Missouri
CHARLES E. SCHUMER, New York         MITCH McCONNELL, Kentucky
MARK R. WARNER, Virginia             RICHARD SHELBY, Alabama
PATRICK J. LEAHY, Vermont            TED CRUZ, Texas
ANGUS S. KING, JR., Maine            SHELLEY MOORE CAPITO, West 
JEFF MERKLEY, Oregon                     Virginia
ALEX PADILLA, California             ROGER WICKER, Mississippi
JON OSSOFF, Georgia                  DEB FISCHER, Nebraska
                                     CINDY HYDE-SMITH, Mississippi
                                     BILL HAGERTY, Tennessee

                    Elizabeth Peluso, Staff Director
             Rachelle Schroeder, Republican Staff Director



                         C  O  N  T  E  N  T  S

                              ----------                              
                                                                  Pages

                         Opening Statement of:

Hon. Amy Klobuchar, Chairwoman, a United States Senator from the 
  State of Minnesota.............................................     1
Hon. Alex Padilla, a United States Senator from the State of 
  California.....................................................     1
Hon. Bill Hagerty, a United States Senator from the State of 
  Tennessee......................................................     3
Hon. Sheldon Whitehouse, a United States Senator from the State 
  of Rhode Island................................................     5
Hon. Jeff Mangan, Commissioner of Political Practices, State of 
  Montana, Helena, Montana.......................................     9
David Keating, President, Institute for Free Speech, Washington, 
  DC.............................................................    11
Virginia Kase Solomon, CEO, League of Women Voters, Washington, 
  DC.............................................................    13
Daniel I. Weiner, Director, Brennan Center for Justice Elections 
  and Government Program, Washington, DC.........................    15

                         Prepared Statement of:

Hon. Sheldon Whitehouse, a United States Senator from the State 
  of Rhode Island................................................    36
Hon. Jeff Mangan, Commissioner of Political Practices, State of 
  Montana, Helena, Montana.......................................    38
David Keating, President, Institute for Free Speech, Washington, 
  DC.............................................................    42
Virginia Kase Solomon, CEO, League of Women Voters, Washington, 
  DC.............................................................    64
Daniel I. Weiner, Director, Brennan Center for Justice Elections 
  and Government Program, Washington, DC.........................    67

                  Materials Submitted for the Record:

Opening Remarks of Senate Republican Leader Mitch McConnell......    79
McConnell: Freedoms of Speech and Association Are Bedrock 
  American Liberties.............................................    81
Van Hollen DISCLOSE Act Statement for the Record.................    85
Campaign Legal Center (CLC) Letter of Support for the DISCLOSE 
  Act, S. 443....................................................    87
Common Cause Letter of Support for the DISCLOSE Act, S. 443......    90
End Citizens United/Let America Vote Action Fund Letter of 
  Support for the DISCLOSE Act, S. 443...........................    92
Fix Democracy First Letter of Support for the DISCLOSE Act, S. 
  443............................................................    94
Indivisible Santa Fe Letter of Support for the DISCLOSE Act, S. 
  443............................................................    95
Elizabeth West, Old Santa Fe Association Letter of Support for 
  the DISCLOSE Act, S. 443.......................................    96
Declaration for American Democracy (DFAD) Letter of Support for 
  the DISCLOSE Act, S. 443.......................................    98
Statement of Senator Patrick Leahy (D-VT.), on the Democracy is 
  Strengthened by Casting Light on Spending in Elections Act 
  (Disclose Act) July 19, 2022...................................   103
League of Women Voters of Main (LWV) Letter of Support for the 
  DISCLOSE Act, S. 443...........................................   104
Michiganders For Fair & Transparent Elections Letter of Support 
  for the DISCLOSE Act, S. 443...................................   105
Testimony Submitted on Behalf of Public Citizen Letter of Support 
  for the DISCLOSE Act, S. 443...................................   106
People United for Privacy Re: Opposition to the DISCLOSE Act and 
  its Destructive Impact on Nonprofit Advocacy and Citizen 
  Privacy........................................................   112
Stand Up America Letter of Support for the DISCLOSE Act, S. 443..   118

                  Questions Submitted for the Record:

Hon. Amy Klobuchar, Chairwoman, a United States Senator from the 
  State of Minnesota to Virginia Kase Solomon, CEO, League of 
  Women Voters, Washington, DC...................................   120
Hon. Amy Klobuchar, Chairwoman, a United States Senator from the 
  State of Minnesota to Daniel Weiner, Director, Brennan Center 
  for Justice Elections and Government Program, Washington, DC...   121
Hon. Ted Cruz, a United States Senator from the State of Texas to 
  Daniel Weiner, Director, Brennan Center for Justice Elections 
  and Government Program, Washington, DC.........................   122

 
                        S. 443, THE DISCLOSE ACT

                              ----------                              


                         TUESDAY, JULY 19, 2022

                               United States Senate
                      Committee on Rules and Administration
                                                     Washington, DC
    The Committee met, pursuant to notice, at 3:03 p.m., in 
Room 301, Russell Senate Office Building, Hon. Amy Klobuchar, 
Chairwoman of the Committee, presiding.
    Present: Senators Klobuchar, Hagerty, Schumer, Warner, 
King, Merkley, Padilla, Ossoff, Cruz, Fischer, and Hyde-Smith.

  OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR, CHAIRWOMAN, A 
       UNITED STATES SENATOR FROM THE STATE OF MINNESOTA

    Chairwoman Klobuchar. We will call the hearing to order. 
Good afternoon. I want to thank Senator Whitehouse for being 
with us today. I think we know how important it is and how 
critical it is to take action to get secret money out of our 
elections.
    Again, I want to thank Senator Whitehouse, also Senator 
Hagerty, who is going to be the Ranking Member for this hearing 
today. Senator Blunt could not be here, but I am pleased to 
have Senator Hagerty with us, our colleagues, and our witnesses 
for being here as well.
    When were you going to leave, Senator Padilla? Are you okay 
for doing the statement first? You wanted to say something.
    Senator Padilla. Actually, I will be super brief, real 
quick.
    Chairwoman Klobuchar. Okay.

 OPENING STATEMENT OF HONORABLE ALEX PADILLA, A UNITED STATES 
              SENATOR FROM THE STATE OF CALIFORNIA

    Senator Padilla. Thank you, Madam Chair. I know we are here 
to talk about the DISCLOSE Act, and I am looking forward to the 
important hearing and discussion. But as a point of personal 
privilege, just want to acknowledge that another element of the 
functioning of our democracy is taking care of the Capitol 
complex and the people who work in it.
    Those of us on the Committee, other Members of the Senate, 
are fully aware of the issues going on with this food service 
workers and their efforts to organize, avoid layoffs, and seek 
proper compensation and working conditions and staffing levels.
    I just wanted to take a moment and, Madam Chair, to thank 
you for your leadership in working to resolve the issues that 
they are facing right now because it is important. Thank you, 
Madam Chair.
    Chairwoman Klobuchar. Well, thank you very much. I am going 
to get us focused here again on the DISCLOSE Act. As Senator 
Blunt and I work with the Architect of the Capitol on the 
worker issue, so important. But this hearing could not come at 
a more important time as we are seeing an unprecedented flood 
of money into our elections.
    Over $14 billion was spent during the 2020 elections, the 
most expensive in our country's history. With the 2022 election 
cycle now underway, we have already seen huge sums of money 
being spent and are on track for the most expensive midterm 
elections ever, in large part because of the rise in 
unaccountable, secret, dark money. This surge of outside money 
shows no signs of slowing down, and those dollars are less 
accountable than ever before.
    One investigation found that more than $1 billion was spent 
on the 2020 elections by groups that do not disclose their 
donors at all. Think about that amount of money. No disclosure 
at all for $1 billion in 2020. Americans know there is way too 
much money in our elections, and for our democracy to work, we 
need strong rules to make sure the American people know who is 
spending the money on the campaigns.
    But since the Supreme Court decisions in Citizens United, 
which opened up the flood of outside money, no significant 
improvements have been made to our disclosure laws or our 
regulations. Unlimited anonymous spending in our elections does 
not encourage free speech, it actually drowns out the voices of 
American people who are seeking to participate.
    That is why we are here to discuss the DISCLOSE Act, and we 
thank Senator Whitehouse, who has championed this legislation 
since 2012, for joining us. I have been proud to support his 
bill and work with him in every way possible to get this done. 
The DISCLOSE Act would address secret money in our politics by 
requiring outside groups, no matter what the group is, that 
spend in our elections to disclose their large donors, those 
that contribute more than $10,000, to the public.
    Importantly, the bill also makes it harder for wealthy 
special interests to hide their contributions or cloak the 
identity of their donors, and cracks down on the use of shell 
companies to conceal donations from foreign nationals. 
Together, these reforms would shine a light on secret spending 
in our election and bring much needed transparency to our 
system of Government.
    The American people know what is at stake. It is no 
surprise that campaign finance disclosure laws have 
overwhelming support. One poll from 2022 found that in swing 
states, 91 percent of likely voters, Republican and Democrat, 
support ending secret money by making political contributions 
fully transparent.
    Another poll from 2019 found that across America, 83 
percent of likely voters support public disclosure of 
contributions to groups involved in elections. A strong 
bipartisan majority of Americans support reforms to reduce the 
influence of money in elections. As we begin today's 
discussion, it is important to remember that there is a 
history, a long, long history of bipartisan support for these 
measures.
    In fact, it was Republican President Theodore Roosevelt who 
signed the first limits on corporate campaign contributions, 
the Tillman Act, into law in 1907. In 1972, the landmark 
Federal Election Campaign Act overwhelmingly passed the Senate 
88 to 2 and was signed into law by a Republican President. In 
2002, our friend and former colleague, Senators John McCain, 
who we miss dearly, and Russ Feingold, joined together to pass 
the Bipartisan Campaign Reform Act, which was signed into law 
by George W. Bush.
    While the Supreme Court has rolled back key protections 
aimed at reducing money in politics from these bills, time and 
time again, the Court has held that disclaimer and disclosure 
requirements are Constitutional, as Trevor Potter, former 
Republican chair of the Federal Elections Commission, confirmed 
before this Committee last year when he testified in favor of 
these measures.
    Former Supreme Court Justice Scalia, never one to hide his 
opinions, was also a staunch supporter of campaign finance 
disclosure. In a 2010 case, Doe v. Reed, he wrote, ``For my 
part, I do not look forward to a society which, thanks to the 
Supreme Court, campaigns anonymously. . .hidden from public 
scrutiny and protected from the accountability of criticism. 
This does not resemble the Home of the Brave.''
    These are cries from the other side of the aisle, 
Republicans, for doing something when it comes to disclosure. 
At a time when threats to our democracy are clearer than ever 
and the public's confidence in government has been badly 
undermined, it is vitally important that we know who is 
attempting to influence our elections.
    I look forward to hearing from our witnesses and having a 
productive conversation about how to address secret money in 
our elections so that we are hearing the voices of the people, 
not just the powerful.
    With that, I want to thank the Senators for joining us. I 
will turn it over to Senator Hagerty and then we will hear from 
Senator Whitehouse.

 OPENING STATEMENT OF HONORABLE BILL HAGERTY, A UNITED STATES 
              SENATOR FROM THE STATE OF TENNESSEE

    Senator Hagerty. Thank you, Chairwoman Klobuchar. Thanks to 
all the witnesses that will be joining us here today. I think 
that we all share the goals of ensuring that our elections are 
transparent and fair, but these goals are not served by 
limiting Americans' First Amendment rights, which is exactly 
what the DISCLOSE Act would do.
    First, this bill would require virtually any entity that 
engages in political speech, including nonprofits, to publicly 
disclose the names and addresses of its significant 
contributors. This is a thinly veiled attempt to send the 
message that if you support an organization that happens to 
support causes with which some people disagree, you become a 
target for criticism, harassment, and intimidation, even if 
your support has nothing to do with the organization's position 
on a certain issue.
    I am concerned it would fuel new frontiers of cancel 
culture and the personalization of politics. This tactic is not 
new. In 1957, in unanimously striking down an attempt to compel 
the NAACP to disclose its members, the Supreme Court held that 
government-compelled disclosure of group affiliation violates 
the First Amendment.
    The Court recognized the ``vital relationship between 
freedom to associate and privacy in one's associations.'' Just 
last year, the Supreme Court reaffirmed this principle by 
holding that California's attempt to compel nonprofits to 
disclose donor names and addresses was unconstitutional.
    Noting that advocacy groups from the ACLU to Americans for 
Prosperity opposed California's compelled disclosure 
requirement, the Court found that it chilled speech and created 
a real risk of threats, violence, and harassment. In recent 
weeks, we have seen how personal information can be weaponized, 
with groups organizing protests at the homes of Supreme Court 
Justices and even at their children's schools. One group is 
even offering bounties to anyone who sights a Justice and 
reports it so that protesters can swarm that location.
    For those who choose to engage in political advocacy, the 
DISCLOSE Act would open the floodgates to this sort of 
dangerous behavior. It would require a choice between silence 
and harassment. As a result, many would choose not to speak. 
The First Amendment is expressly intended to prevent this sort 
of silencing.
    The bill also creates new, unworkable, and subjective 
constraints on speech. It would subject virtually any 
communication by virtually any entity that even mentions a 
candidate or public official to FEC regulations and donor 
disclosure requirements.
    This legislation would also require speakers to declare 
whether communications that simply mention a Federal official 
are made in support or opposition to the official, even if the 
communication is not made in support or opposition to that 
official. This would force inaccurate and unconstitutional 
declarations of allegiance.
    The bill also includes oppressive new disclosure 
requirements in order to communicate. These include requiring 
nonprofit entities and other groups to name in each political 
communication their top donors and how much money each donated 
to the organization. Unbelievably, it requires showing a full 
screen image of the person who leads the entity that is making 
the communication.
    All of this would infringe upon and discourage free speech. 
As a 2021 op-ed from two ACLU lawyers put it, ``we know from 
history that people engaged in politically charged issues 
become political targets and are often subject to threats of 
harassment and even violence.''
    The First Amendment is based on the principle that the 
remedy for speech with which you disagree is more speech, not 
forced silence. Our Constitution creates a free market of 
ideas. If you disagree with someone's views, the remedy is to 
express your own views, not to silence theirs. Because the 
DISCLOSE Act promotes intimidation rather than free speech, I 
cannot support this legislation. I look forward to hearing the 
testimony from the witnesses that are joining us today.
    Finally, I understand that Leader McConnell is no longer 
able to join us today, so I ask unanimous consent that his 
floor remarks from this morning and prepared remarks for this 
hearing be entered into the hearing record.
    Chairwoman Klobuchar. They will be.
    [The information referred to was submitted for the record.]
    Senator Hagerty. Thank you, Chairwoman Klobuchar.
    Chairwoman Klobuchar. Thank you very much, Senator Hagerty. 
Next up, we are honored to have a visitor, a visiting Senator 
to our Committee. Senator King and Senator Hyde-Smith, I do not 
think we have had many Senators visit the Committee, so we are 
very excited. That is Senator Sheldon Whitehouse from Rhode 
Island.
    Senator Whitehouse is the sponsor of the DISCLOSE Act and 
has long been a champion on the need to eliminate secret, dark, 
unaccountable money in our elections. Senator Whitehouse, thank 
you for joining us and you are recognized for your testimony.

  OPENING STATEMENT OF HONORABLE SHELDON WHITEHOUSE, A UNITED 
         STATES SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Chair Klobuchar and Ranking 
Member Hagerty for inviting me to testify on the DISCLOSE Act. 
Twelve years after Citizens United, Americans know something is 
deeply amiss in our democracy. Huge majorities see America 
headed in the wrong direction. Fifty-eight percent of voters 
say our Government needs major reforms or a complete overhaul.
    Only 25 percent of Americans say they have confidence in 
the Supreme Court. They see Government actually erasing rights 
on which generations of Americans relied. Is all of this some 
weird collective phase we are going through, or are the people 
actually right that something is wrong?
    I submit to you that the distress in our Republic has much 
to do with corrupting political influence acquired via 
unlimited, anonymous dark money. That dark money influence has 
created a disconnect between what Americans want their 
Government to do and what it actually does.
    Dark money by design can be impossible to trace, but people 
instinctively know it when their voices are being drowned out 
and big corporations always seem to come out on top. They can 
tell when the ad on their television was put up by some fake 
front group they have never heard of.
    Floods of dark money caused this mess, so we can fix it. 
The DISCLOSE Act, first introduced by Leader Schumer in 2010 
and reintroduced by me in every Congress since, will fix this. 
Even the Citizens United Justices recognized that unlimited 
political spending without transparency would be corrupting. 
That, they got right.
    We have seen a tsunami of slime distort our politics and 
corrode our democracy since. What the Justices got wrong, 
indisputably, factually wrong, is their unlimited money tsunami 
being either transparent or independent.
    The wreckage from the dark money aftermath of Citizens 
United is staggering. Dark money political spending went from 
under $5 million in 2006 to more than $1 billion in 2020. Mega-
donors and special interests had a bonanza. Billionaire 
political spending increased by a factor of 70, from $17 
million for the 2008 election to $1.2 billion for 2020.
    In 2018, super PACs and other dark money groups 
collectively outspent even candidates' own campaigns in 16 
Federal races. If you think things are different, well, they 
are. Academic studies found that economic elites and business 
interests have huge influence on Government policy, while 
average citizens have little or none.
    Whatever the American people want, the big donor interests 
now win nearly every time. Look at climate change. Before 
Citizens United, there was a steady heartbeat in the Senate of 
bipartisan climate bills. John McCain ran for President with a 
solid climate platform. With Citizens United, that heartbeat 
flatlined. The fossil fuel industry used its unlimited dark 
money weaponry to stamp out bipartisanship, creating a lost 
decade of legislative failure for which I fear we will pay very 
dearly.
    Far right special interests even turned their dark money 
guns on the Federal judiciary. They funded a $580 million 
secretive network to pack the Courts with judges selected to 
greenlight donor friendly policies and to run multi-million 
dollar ad campaigns to keep those confirmations on track. This 
network involves dozens of front groups, some of which are mere 
fictitious names for other secretive front groups.
    Now we have a Court gone wild. In a matter of days, the 
newly radicalized Court overturned Roe v. Wade, manufactured 
new polluter friendly legal doctrines, and threw out centuries 
old gun safety regulations, all of it wildly unpopular with 
most people.
    Dark money groups funded and organized the rally before the 
January 6th attack on the Capitol and perpetuate the big lie 
today. Bad enough. But behind and beside the Trump mob's 
violent insurrection attempt has run a slow motion coup d'etat 
by secretive special interests, surreptitiously, incrementally 
taking over Government power.
    Madam Chair, left to rot--left to fester, dark money will 
rot the very foundation of our Republic. Remember, Justices who 
signed off on Citizens United conceded dark money was 
corrupting. That part was 8 to 1. We need to pass the DISCLOSE 
Act so citizens can see who is spending big money in politics. 
Donors who spend over $10,000. Even foreign enemies can now try 
to corrupt us through dark money channels. After all, secret is 
secret. By the way, the American people love this idea. Poll 
after poll shows Americans overwhelmingly by margins of 85 to 
90 percent want this.
    Even Republicans criticized dark money. Well, we should all 
have a chance. The Republicans should have a chance to join us 
in ending it. If we get rid of the damned stuff, this horrible 
decade of dark money corruption can come to an end, and 
Congress can begin to serve America again. Thank you very much.
    [The prepared statement of Senator Whitehouse was submitted 
for the record.]
    Chairwoman Klobuchar. Thank you very much, Senator 
Whitehouse. Thank you for reminding us that actually that the 
Justices anticipated that we would do something on disclosure 
and disclaimers. Sadly, that has not happened when it comes to 
the dark money.
    But one day we will get this done, and this hearing is the 
beginning of that. I want to thank you for your long advocacy 
to get it done.
    All right. Senator Schumer is on his way. I know he is 
going to give a statement, but in the meantime, I am going to 
call up the witnesses. If you want to come up and when Senator 
Schumer comes, we will have him give a statement. But for now, 
why don't we swear everyone in and get started.
    Okay. Senator Hagerty, will introduce one of the witnesses 
and I will introduce three. I think two are remote, and two are 
here. Before I do this, I want to ask unanimous consent to 
enter into the record a statement from Senator Van Hollen, as 
well as a few letters of support from democracy reform groups 
and others in support of the DISCLOSE Act, including from the 
Campaign Legal Center, Public Citizen and End Citizens United. 
Without objection, the documents will be entered into the 
record.
    [The information referred to was submitted for the record.]
    Chairwoman Klobuchar. Before we introduce the witnesses, I 
am going to let Senator Schumer come in--he has a lot going 
on--and say a few words. Senator Whitehouse just spoke, Senator 
Schumer. Did a very, very good job. We will--we appreciate you 
joining us today as a Member of the Committee. I think I am 
correct that this is the only Committee that you and Senator 
McConnell are on.
    Senator Schumer. That is correct. I think he may still be 
on Approps, but this is my only one.
    Chairwoman Klobuchar. All right.
    Senator Schumer. Well, thank you, Senator Klobuchar. Thank 
you not only for holding this hearing, but the Rules Committee 
has been a great beacon on campaign finance and cleaning up so 
much of the politics in America that needs cleaning up. I thank 
you for your great leadership on this issue.
    I also do want to thank Senator Whitehouse. I saw him in 
the hallway. He said, you missed my speech. I said; I hope mine 
is half as good.
     Why are we here today? Because across our democracy, the 
disease of dark money has spread unchecked like a cancer. 
Today, I am proud to join with my colleagues to support the 
DISCLOSE Act, which I have long championed, and I promised to 
bring on the floor for a vote. In free and fair elections--one 
person, one vote--American voters alone should have the power 
to determine our Nation's leaders without fear that their 
voices will be drowned out by powerful elites or special 
interests.
    Whether someone is rich or poor, young or old, well-
connected or otherwise, none of that should have any bearing on 
their ability to affect the final outcome of the democratic 
process.
    But we all know that today that ideal is not reality in 
America from the moment Chief Justice Roberts and the radical 
conservative majority on the Supreme Court handed down their 
opinion in Citizens United, one of the most awful decisions 
that we have ever had from the Court, taking and twisting the 
First Amendment into an argument to help special interests and 
powerful moneyed interests, which it was never intended to be.
    Billions of dollars in dark money spending has poured into 
our elections, and Senate Republicans, particularly the 
Republican Senate leader who I wish had come today, I thought 
he might, have blocked practically every attempt to get rid of 
dark money at great expense to our democracy. Over a decade 
later, trust in our democracy is eroded.
    Dark money groups have taken advantage of a megaphone that 
has drown out the voices of everyday Americans. The problem is 
not just limited to our elections. Dark money is corroding the 
judicial nomination process as special interest groups spend 
tens of millions to push extremist judges onto the Federal 
bench.
    The worst part? Much of this money is raised in secret. The 
DISCLOSE Act operated off a simple premise, a healthy democracy 
is a transparent democracy, one where billionaires and mega-
corporations do not have a free pass to exploit loopholes in 
campaign finance in order to spend billions in anonymous, 
underlying anonymous campaign contributions. That is the 
antithesis of democracy, someone having unequal power because 
they have huge amounts of money and no one even knowing what 
they are doing.
    The bill asserts very plainly that Americans deserve to 
know who is trying to influence our election. It pays tribute 
to the words of Justice Louis Brandeis, ``Sunlight is said to 
be the greatest disinfectant''. This should not be a Democratic 
or Republican view. It did not use to be early on. It should be 
bipartisan through and through. Sadly, it is not.
    When was the last time any of us heard voters cheering on 
dark money in our elections? Who here honestly thinks it is 
better for billionaires and special interests to buy elections 
in secret rather than face the healthy scrutiny of the American 
people? Passing this bill has never been more important than it 
is today.
    As MAGA Republicans pass sweeping voter suppression laws, 
it is more urgent than ever to tilt the playing field back in 
favor of the American people and restore faith in the 
democratic process. If you agree that the American people have 
a right to know who is trying to influence their elections, 
support the DISCLOSE Act.
    If you agree that billions of dollars in anonymous campaign 
contributions every year is not a function of a healthy 
democracy, support the DISCLOSE Act. If you agree that 
Americans' representatives should have only one boss, the 
people and not special interests then support the DISCLOSE Act.
    Democracy cannot prosper without transparency. I strongly 
support this legislation so we can safeguard our electoral 
process and keep the dream of our founders alive in this 
century. I thank the Chair, the Ranking Member, and all the 
other Members for their time and letting me speak now. Thank 
you.
    Chairwoman Klobuchar. Thank you very much, Leader Schumer. 
Now, next up, our witnesses. First, Commissioner Jeff Mangan, 
who is with us remotely. He has served as Montana's 
Commissioner of Political Practices since 2017, overseeing the 
integrity and transparency of elections in the state. He was 
confirmed to that position by a bipartisan 48 to 1 vote of the 
Montana State Senate. Sounds pretty good. Previously, Mr. 
Mangan served for four years as a State Representative and four 
years as a State Senator in Montana. He holds a bachelor's 
degree from Montana State University.
    Second, Ms. Virginia Kase Solomon. She is the Chief 
Executive Officer of the League of Women Voters of the United 
States and has held that position since 2018. Previously, she 
worked at CASA, helping to manage a national immigrant rights 
organization. She holds a bachelor's degree from the University 
of Maryland. We thank you for joining us here.
    Next up, Dan Weiner, who is the Director of the Elections 
and Government Program at the Brennan Center for Justice at NYU 
School of Law, where he has worked since 2014. Previously, he 
served as a Senior Counsel to Commissioner Ellen Weintraub at 
the Federal Election Commission. He holds a bachelor's degree 
with honors from Brown and a law degree from Harvard.
    Next, Senator Hagerty, please introduce the next witness.
    Senator Hagerty. Thank you, Chairwoman Klobuchar. Our next 
witness is going to appear remotely as well. David Keating is 
the President of the Institute for Free Speech. The Institute 
for Free Speech is the Nation's largest organization dedicated 
solely to protecting First Amendment political speech rights.
    In leading numerous nonprofit groups throughout his career, 
Mr. Keating has been a tireless advocate for Americans' First 
Amendment rights to freely speak, to freely assemble, to 
publish and petition the Government.
    He has also been a leader in protecting the rights of 
Americans to associate and join together in political advocacy. 
Thank you for joining us today, Mr. Keating.
    Chairwoman Klobuchar. Okay. Thank you. If our witnesses 
could now stand and raise their right hand. Do you swear that 
the testimony you will give before the Committee shall be the 
truth, the whole truth, and nothing but the truth, so help you 
God?
    Mr. Mangan. Yes.
    Ms. Solomon. Yes.
    Mr. Weiner. Yes.
    Mr. Keating. Yes.
    Chairwoman Klobuchar. Thank you. You can be seated. We will 
begin--I heard that. Very good, remote people. We are going to 
begin with Commissioner Mangan, you are recognized for your 
testimony for five minutes.

  OPENING STATEMENT OF HONORABLE JEFF MANGAN, COMMISSIONER OF 
     POLITICAL PRACTICES, STATE OF MONTANA, HELENA, MONTANA

    Mr. Mangan. Thank you, Chairwoman Klobuchar, Ranking Member 
Hagerty, Members of the Committee. I am honored to participate 
in today's hearing. I appear to discuss one state's experience 
with campaign finance transparency and disclosure as you 
consider legislation to provide additional disclosure 
requirements to the Federal Election Campaign Act.
    I will briefly describe the role of Montana's COPP specific 
to campaign finance disclosure against the backdrop of my 
state's unique and storied past. Common threads of fierce 
independence, bipartisan traditions, and citizen driven reform 
have profoundly influenced and shaped state law and continue to 
do so.
    Transparency and accountability have become part of the 
fabric of Montana's state institutions and elections. First and 
foremost, the office I represent is and always has been an 
independent and nonpartisan office.
    Following passage of the Federal Election Campaign Act and 
ratification of the 72 Montana Constitution, a 1975 citizen 
legislature established the Office of Commissioner of Campaign 
Finance and Practices, now the COPP. Its establishment enforced 
disclosure and reporting of money used to influence Montana 
elections.
    Montana's Governor appoints the Commissioner from a list 
submitted by a bipartisan legislative nomination committee, and 
the state Senate confirms the nominee. In 2017, when I was 
appointed by then Governor Steve Bullock, a Democrat, the 
Senate consisted of 32 Republicans and 18 Democrats, the second 
largest Republican majority in decades. The Senate confirmed my 
nomination by a vote of 49 to 1, testament once again to 
Montana's bipartisan approach to campaign finance reporting and 
disclosure.
    The written testimony I have submitted provides additional 
details on how the COPP carries out its statutory 
responsibility. Convergence of events during the turn of the 
century helps illustrate how Montana started down the path, 
which it still walks, to regulate spending in elections and 
ensure that spending is public information. That path is paved 
with copper.
    Expensive deposits of copper unearthed in the late 1800's 
in Butte became increasingly valuable as industrialization and 
the widespread use of electricity swept the Nation. Even today, 
Butte is often called the richest hill on earth.
    Three prominent figures who would become known as the 
Copper Kings, capitalized on and controlled that wealth. While 
Montana achieved statehood in 1889, two of the copper kings, 
William A. Clark and Marcus Daly, fought ferociously for the 
new United States Senate seat, spared no expense bribing 
politicians and judges and purchasing newspapers to propagate 
scandalous stories about each other.
    Clark emerged the victor, and as the United States Senate 
was on the verge of rejecting his nomination, he resigned only 
to run again in 1901. Having failed to fulfill campaign 
promises, it was said of him among his colleagues in 
Washington, if you took away the whiskers and the scandal, 
there would be nothing left.
    Clark, Daly scandals and other schemes to purchase public 
office led 1912 to the passage by a 3 to 1 margin of the 
Citizens Initiated Corrupt Practices Act, prohibiting corporate 
contributions to and expenditures on candidate elections.
    Subsequent citizen initiated measures to limit campaign 
contributions and expenditures would follow in 1994, 1996, and 
2012, all passing by significant margins.
     Through the years, the 1912 Corrupt Practices Act had 
remained largely intact. Withstanding a challenge in 2011, in 
which the Montana Supreme Court held that unlimited corporate 
donations creates a dominating impact on the Montana political 
process and inevitably minimizes the impact of individual 
Montana citizens. United States Supreme Court decisions, 
however, would significantly alter the landscape of campaign 
finance law and ultimately result in the demise of that portion 
of Montana's Corrupt Practices Act.
    In 2010, the United States Supreme Court held in Citizens 
United that corporations and other outside groups can spend 
unlimited money on elections. Two years later, in American 
Tradition, Partnership, Inc. v. Bullock, the Court held, there 
can be no serious doubt that its decision in Citizens United 
that political speech does not lose First Amendment protections 
simply because a source is a corporation, applied to Montana 
State law.
    Three years after the Supreme Court's ruling, the 2015 
Montana legislature enacted, and Governor Steve Bullock signed 
the Montana Disclose Act. The Act has been lauded as one of the 
most robust campaign finance laws in the country.
    Notably, the legislation requires disclosure reports by 
entities participating in Montana's elections regardless of 
their tax status. The state had again flashed its bipartisan 
stripes with the measure sponsored by a Republican Senator, 
enacted by a Republican controlled legislature, and signed by a 
Democratic Governor.
    Since statehood, Montana's citizens have grappled with the 
ramifications of money in elections, while holding fiercely to 
protecting the public's Constitutional right to know. Campaign 
finance reporting and disclosure laws--excuse me, campaign 
finance and disclosure laws will continue to evolve as they 
should through legislation and in the Courts.
    But regardless of which political party holds sway in the 
Executive and Legislative branches of Montana, the state's 
history has shown that its citizens will continue to expect no 
less than absolute transparency from its candidates and those 
who seek to help place them in positions of public trust.
    Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Mangan was submitted for the 
record.]
    Chairwoman Klobuchar. Thank you very much. I appreciate 
your testimony. Then we have, next up we have Mr. Keating. If 
you want to----
    Mr. Keating. Sorry.
    Chairwoman Klobuchar. That is okay.
    Mr. Keating. Chair, can you hear me now?
    Chairwoman Klobuchar. We can hear you now. In fact, we 
might want to turn down a little bit. Yes.
    Mr. Keating. Well, I will let the tech--do that----
    Chairwoman Klobuchar. Yes, exactly. You do not have to 
worry.

 OPENING STATEMENT OF DAVID KEATING, PRESIDENT, INSTITUTE FOR 
                  FREE SPEECH, WASHINGTON, DC

    Mr. Keating. Okay. Chairwoman Klobuchar, Ranking Member 
Hagerty, and Members of the Committee, thank you for the 
opportunity to speak today. First, before I get started, I want 
to commend the Committee for the quick action that you did 
both, in 2020 I believe, and this year to confirm or recommend 
confirmation of nominees to the Federal Election Commission.
    I really commend you for acting promptly on that. Thank you 
very much. I do want to speak about free speech. It is 
obviously fundamental to American democracy. The First 
Amendment says we have the right to freely speak----
    Chairwoman Klobuchar. Oh, he just turned--you just turned 
yourself off there. Now, it was on the words freely speak. If 
we are going to--just go back to that sentence. That was 
really, that was an interesting thing to make us focus, so it 
was very good.
    Mr. Keating. Well, it is very important. Government and 
society cannot be improved without free speech, of course. As 
we have seen around the world, free speech can mean the 
difference between liberty and tyranny.
    S. 443 would harm our free speech rights and harm our 
democracy. It would suppress speech about Government and 
candidates, threaten our privacy if we speak or join groups, 
and impose heavy burdens for organizing.
    Now, among the effects of S. 443: it would force groups and 
the FEC to publish misinformation. It would compel groups to 
say they support or oppose Members of Congress, even if they do 
neither. It would make some disclaimers longer than the time or 
space available for the ad.
    It would publicize--it would publicly expose the names and 
addresses of many supporters of nonprofit causes, putting 
Americans at risk of harassment and retaliation for their 
beliefs. Now, these legal and compliance costs will force many 
smaller groups to self-censor. It would definitely increase the 
cost of criticizing the Government. Let me give you one example 
of the many absurd requirements in this bill.
    Let us assume an environmental group, let us call it 
Americans for the Environment, wants to sponsor a 30 second 
radio ad calling on Senators in a certain state to take action 
on climate change. Here is a disclaimer that would have to be 
read: paid for by Americans for the Environment, 
cleanenvironment.org, not authorized by any candidate or 
candidate's committee.
    I am John Doe, the President of Americans for the 
Environment and Americans for the Environment approves this 
message. Top two funders are first name one, last name one and 
first name two, last name two.
    Now that disclaimer took about 18 of the 30 seconds, and it 
takes away from the group's climate change message. Radio ads 
are 30 seconds, so the Government in this case would be taking 
over half the ad.
    Now, to justify passage, we have heard a lot today about 
dark money, but no one really knows exactly what that term 
means here, and it is not shining much light. Let's start with 
a few basic facts. There are currently more laws mandating 
public disclosure of politically related spending than any time 
in our Nation's history.
    Candidates, political parties, and PACs disclose all their 
donors beyond the most deminimis amounts. Federal law also 
requires reporting of independent expenditures over $250. Given 
this extensive disclosure, it is a misnomer to speak of 
undisclosed spending.
    Really what we have is a system in which some of the 
spending--some of the spending occurs with less information 
about spenders, members, donors, and internal operations than 
some people would like to see. But how big an issue is this?
    Well, in fact, in 2020, we saw less so-called dark money 
than in any election since Citizens United. It peaked in 2012 
with $312 million spent, which was 5 percent of that year's 
total campaign spending. This past election, dark money was 
just $102 million, and that is under 1 percent of the $14 
billion price tag spent by all candidates, PACs, and parties.
    Even that overstates the issue because many of the largest 
spenders are well known like NARAL Pro-Choice America and 
National Association of Realtors. The question may be, why not 
seek still more information?
    The answer is with almost everything else, even good 
things, that after a point you have rising costs and 
diminishing returns. Few people argue, for example, that we 
should turn our Nation into a police state to try to stamp out 
the last 5 percent of crime.
    Finally, I would like to say we cannot overlook the costs 
in privacy that come with excessive compulsory disclosure. The 
Supreme Court has repeatedly struck down excessive disclosure 
laws in cases involving union organizers like Thomas E. 
Collins, civil rights organizations like NAACP v. Alabama, 
NAACP v. Button, Bates v. Little Rock, picketers, pamphleteers, 
missionaries, charities, and yes, even organizations making 
partisan express advocacy communications to voters in the 
Buckley v. Valeo case.
    S. 443, if enacted, will certainly be challenged on 
Constitutional grounds. But I hope that the Committee will 
instead show consideration for the Constitutional rights at 
stake, and the privacy and other interests at stake that would 
justify such a challenge.
    Let us keep in mind the purpose of disclosure is to allow 
citizens to monitor the Government. That is why we have 
disclosure of contributions to candidates and political parties 
controlled by the candidates. It is not to allow the Government 
to monitor the political activity of its citizens.
    Please recognize the real costs that compulsory disclosure 
has for unpopular speakers and new, often unpopular, ideas. 
These are ideas that may in the future become quite popular. 
This was the case with many causes throughout history, 
including the civil rights movement and relatively recently, 
the movement for same sex marriage.
    We cannot seriously discuss this issue today without 
recognizing the tremendous cost of the excessive zeal for full 
disclosure is already having on public confidence in 
Government. Rightly or wrongly, millions of Americans already 
believe their Government is inappropriately spying on them.
    Millions believe the IRS is being used as a tool to harass 
critics. In fact, just in the last few weeks, we have seen 
headlines in The New York Times expressing concern about the 
audits of former FBI Director James Comey and his colleague.
    The best way to give people a voice and to protect 
democracy is to protect and enhance the rights to free speech, 
free press, assembly, and petition guaranteed by the First 
Amendment. Thank you very much.
    [The prepared statement of Mr. Keating was submitted for 
the record.]
    Chairwoman Klobuchar. Thank you very much, Mr. Keating. 
Next up, Ms. Virginia Kase Solomon.

  OPENING STATEMENT OF VIRGINIA KASE SOLOMON, CEO, LEAGUE OF 
                  WOMEN VOTERS, WASHINGTON, DC

    Ms. Solomon. Chairwoman Klobuchar, Ranking Member Hagerty, 
and Members of the Senate Committee on Rules and 
Administration, thank you so much for the opportunity to 
testify today on the DISCLOSE Act. The League of Women Voters 
is a nonpartisan organization that was founded over 100 years 
ago by leaders of the Women's Suffrage Movement.
    We are an issue focused, activist and grassroots 
organization that believes voters must play a critical role in 
our democracy. Since 1920, the League has worked to deliver on 
our mission to empower voters and defend democracy.
    Today, the League has a presence in nearly every community 
across the country, with more than 750 chapters spread across 
50 states and the District of Columbia. The League has 
supported the DISCLOSE Act for more than a decade because we 
believe that our democracy is strengthened when Americans are 
encouraged to engage in civic participation.
    We believe Americans deserve to know who is trying to 
influence their vote. As an organization, the League has fought 
for nearly five decades to combat the influences of money on 
politics. Our work reflects our ongoing priority to promote 
open and honest elections and maximize participation in the 
political process.
    Voters have the right to know who is making large campaign 
contributions to influence elections and when contributions are 
made, we believe it must be done with transparency. The 
DISCLOSE Act accomplishes this fundamental purpose by requiring 
expenditures and donations of $10,000 and above to be reported.
    Every day the League works to inform voters about the 
issues they care about by providing critical voter services to 
the public. In the last two years, almost 6.5 million users 
came to VOTE411.org, the League's award winning nonpartisan 
website for election information that voters need.
    The site provides registration tools, candidate guides, and 
resources about what they need to take with them when they go 
to vote. As an organization, we work to simplify the voting 
process for voters to make their individual voting plans. These 
actions make the voting process understandable and accessible, 
which breaks down barriers to participation.
    However, it should not fall to organizations such as the 
League to provide information and ensure transparency in our 
elections. The law should require public disclosure when it 
comes to dark money groups seeking to influence elections. 
Transparency is a baseline requirement for a healthy democracy.
    According to a nationwide study conducted by the Campaign 
Legal Center, about 60 percent of voters believe that major 
changes are needed to our country's campaign finance system. 
The majority of voters surveyed also believe that the money 
spent by special interest groups has a direct impact on their 
personal lives.
    We have seen that--we have seen that without transparency, 
candidates and election officials fall into the trap of valuing 
donors and their priorities above the needs of voters and 
everyday citizens. Such de-prioritization of voters only breeds 
distrust in the Republic and those who lead it.
    There should be little question that this runs counter to 
the spirit of our democracy and a Government of, by, and for 
the people. Dark money spans the political spectrum and is used 
by both Democrats and Republicans to boost candidates. In fact, 
in 2020, a majority of outside funding was spent to promote 
Democratic candidates.
    Open Secrets, the Nation's premiere research group tracking 
money in United States politics estimates that $1 billion in 
dark money was spent in the 2020 elections. Shell companies, 
outside groups, and political nonprofits funneled millions of 
dollars to super PACs, which help to hide the individual source 
of donations.
    Secret campaign money, no matter the party, promotes 
unbridled power and has no place in American democracy. It 
undermines the rule of the voter and corrupts the election 
process. The League will continue to fight to ensure that 
voters can make decisions free from influence of dark money and 
special interest groups.
    We strongly support the DISCLOSE Act and urge this 
Committee to take up this legislation and advance it to the 
full Senate for a vote as quickly as possible. Thank you again 
for the opportunity to testify on this important legislation, 
and I look forward to taking your questions.
    [The prepared statement of Ms. Solomon was submitted for 
the record.]
    Chairwoman Klobuchar. Thank you very much. Mr. Weiner.

 OPENING STATEMENT OF DANIEL WEINER, DIRECTOR, BRENNAN CENTER 
  FOR JUSTICE ELECTIONS AND GOVERNMENT PROGRAM, WASHINGTON, DC

    Mr. Weiner. Thank you, Chair Klobuchar--excuse me. Thank 
you, Chair Klobuchar, Ranking Member Hagerty, and Senators. I 
appreciate the opportunity to testify today in support of S. 
443, the DISCLOSE Act of 2021. I co-direct the elections and 
Government program at the Brennan Center for Justice at NYU 
School of Law.
    The Brennan Center is an independent, nonpartisan law and 
policy institute that works to strengthen democracy for all 
Americans. Prior to coming to the Brennan Center, I served as a 
Senior Counsel to a Commissioner at the Federal Election 
Commission and as a lawyer at a major DC law firm. Altogether, 
I have well over a decade of experience working in the fields 
of campaign finance and election law.
    In Citizens United, the Supreme Court swept aside century 
old restrictions on corporate campaign spending and ushered in 
the era of super PACs. I, like many, have been highly critical 
of the decision. But the Court did embrace at least one type of 
regulation in that ruling, campaign transparency. In fact, the 
Court appears to have assumed that the sources of all the new 
corporate spending it permitted would be fully disclosed, 
proclaiming that, and I quote, ``a campaign finance system that 
pairs corporate independent expenditures with effective 
disclosure has not existed before today.''
    Now, of course, the Court's assumption that transparency 
already existed, and I must say, like many of its assumptions 
about the effects of its decisions on American democracy, was 
wrong.
    Although an 8 to 1 majority in Citizens United resoundingly 
endorsed the Constitutionality of campaign finance disclosure 
rules, the Court's action in permitting many unregulated 
entities to spend money on campaigns, of course, ushered--
unleashed a wave of new secret spending in United States 
elections, what today, we often refer to as dark money.
    Dark money groups who keep their donors secret have 
reported spending well over $1 billion on Federal elections 
since 2010. Critically, most of that spending is concentrated 
in a few specific races where, as has been noted already, it 
can sometimes account for a third or more of total money spent.
    As the Chair noted, reported dark money spending is really 
only the tip of the iceberg. It does not include funds that 
dark money groups funnel to super PACs that nominally disclose 
their donors, nor the many types of election spending that are 
simply not subject to any reporting requirements, such as most 
online campaign ads.
    As we noted, the Nonpartisan Center for Responsive Politics 
has estimated that total dark money spending in just the 2020 
election cycle exceeded $1 billion.
    The proposed legislation offers a tailored response to this 
problem. It requires organizations spending $10,000 or more on 
Federal campaign activities to disclose donors who themselves 
gave $10,000 or more. I want to note that $10,000 is 50 times 
the threshold we have for disclosure to candidate campaigns, 50 
times.
    The Act also contains a variety of other exceptions, 
including for donors who do not want their money used for 
campaign spending and for those for whom disclosure poses a 
genuine safety risk. This is a commonsense approach, and it is 
one that will bring important benefits.
    It will arm the voting public with knowledge about who is 
seeking to influence their votes and what those interests want 
from the Government, allowing voters to make, as Citizens 
United put it, ``informed choices in the political 
marketplace.''
    Greater electoral transparency is also an important 
safeguard against corruption, and it will help prevent evasion 
of other rules, including curbs on foreign interference, which 
I hope we will talk about today, because that is the other 
piece of this bill.
    It shores up protections against meddling in the United 
States political process by foreign Governments, wealthy 
corporations, and oligarchs. Here too, while purporting not to 
undermine these safeguards, the Supreme Court has actually made 
them far easier to evade. For example, through shell 
corporations that can be used to funnel illicit money to super 
PACs.
    In a time of resurgent authoritarianism around the world, 
with hostile actors looking to benefit from instability and 
division in the United States, reinforcing guardrails to 
prevent manipulation of our political process could not be more 
critical.
    In conclusion, I just want to emphasize that these are not 
partisan issues. Overwhelming majorities of Americans across 
party and ideological persuasion support campaign transparency.
    Nor will closing dark money loopholes benefit one party or 
the other. Indeed, as my co-panelist noted, while Republicans 
benefited more from dark money in some past election cycles, in 
2020, left leaning dark money groups outspent their 
conservative counterparts by more than a 2 to 1 margin.
    Ultimately, this is not about helping Democrats or 
Republicans. It is about making sure that all Americans have 
the means to hold political leaders and those working to elect 
them accountable.
    This is far from the only step we believe that Congress 
must take to safeguard American democracy. But truly, I believe 
it should be one of the easiest. We urge you to pass this 
important bill, and I, of course, look forward to your 
questions.
    [The prepared statement of Mr. Weiner was submitted for the 
record.]
    Chairwoman Klobuchar. Very good. Thank you. Thank you, all 
of you. I am going to cede my first five minutes here to 
Senator King, who has been diligently here from the beginning. 
Thank you.
    Senator King. Thank you, Madam Chair. I first want to clear 
up a factual question with Mr. Keating. The testimony we have 
had from our other witnesses is that over $1 billion of dark 
money--that is, unaccounted money, undisclosed money--was 
contributed in the 2020 election. You had a much lower number.
    What is the difference? Groups are disclosed, you know, 
``Americans for Greener Grass'', but there is not disclosure of 
the donors and that is really the issue here. Mr. Keating, is 
there a factual problem here? Give me a brief explanation of 
the difference between your figure, which was much lower and $1 
billion.
    Mr. Keating. Well, I do not know where the other numbers 
are coming from. I can just tell you where we get our numbers. 
These are groups, according to Open Secrets, that are not PACs 
and are not disclosing their donors when they are making 
independent expenditures or electioneering communications.
    Now, I know the Wesleyan--there is some Wesleyan project 
that has put out numbers, and they are counting things that are 
not campaign related, in my view. They are counting ads that 
talk about legislation pending before Congress during an 
election year.
    If you expand the amount of time that you are going to 
cover communications about policy issues, it may mention 
Members of Congress in them, you can come up with different 
numbers.
    I think one of the things that would be useful is to have 
everyone agree on what numbers work we are all talking about 
here.
    Senator King. Well, I think that would be useful. But the 
fundamental point that you are making is that disclosure would 
be a dampening or chilling of free speech.
    Every day I have to go over and vote. It is very 
interesting how the Senate voting process works. The first half 
of the people that vote, the clerk gets up and reads all their 
names. Then everybody that votes after that period, after they 
have gone through the alphabet, the clerk reads their name 
aloud when they vote.
    The whole idea is that the public knows exactly who votes. 
I am subject to criticism for some of my votes. It might even 
chill my free speech. Do you think the Senate vote should be 
secret?
    Mr. Keating. No. Absolutely, not. But----
    Senator King. What is the difference? What is the 
difference? What is the difference between--because I 
voluntarily entered the political sphere, I understand that. 
But a person who contributes $1 million to a political campaign 
to try to defeat or seat a Senator is also voluntarily entering 
the political arena. Why are their tender feelings any more 
worth protecting than the feelings of my $200 donor who has to 
be disclosed?
    Mr. Keating. Well, a couple of things here----
    Senator King. I am very worried about billionaires' 
feelings here, I got to tell you, because it is really 
touching.
    Mr. Keating. Sure. A couple of things. First, we have a 
secret ballot here in the United States. When people go to 
vote, their ballot----
    Senator King. Nobody is talking about voting. We are 
talking about people entering the political arena by making a 
political contribution. If they give me $200, their name, 
address, and occupation is disclosed. If they give $200 million 
to a PAC, a super PAC that has a name that nobody knows what it 
means, they can be hidden.
    What is the difference? How do I tell my person--that they 
are there have to be disclosed, but a billionaire in California 
who is trying to buy a Maine Senate seat does not have to be 
disclosed. How do I explain that?
    Mr. Keating. Well, there is--first of all, if a billionaire 
is giving money to a super PAC, it is disclosed.
    Senator King. Not if it is through a 501(c)(4) or one of 
these other phony baloney.
    Mr. Keating. That is illegal. You cannot give money to a 
third party and say, give it to this organization. That is a 
contribution in name of another. That is barred and that is a 
criminal offense. That is the sort of thing that I think the 
Justice Department would go after. But what I am talking about 
here, and I think----
    Senator King. But the nub of your argument seems--nub of 
your argument, and Senator Hagerty mentioned this, this fear of 
harassment of people because they are disclosed. The point is, 
if you take a public position in this country, there is no 
First Amendment right to anonymity.
    I once was--my highest political position before being 
Governor of Maine, was moderator of the Topsham, Maine Town 
Meeting. Nobody can go to a Town Meeting in Maine with a bag 
over their head.
    The person who is making the statement, the identity of 
that person is part of the information that the voters need in 
order to assess the information and that is what you are 
denying them.
    Mr. Keating. Well, look, we are not talking--the bill goes 
far beyond election expenditures, for independent expenditures 
and so-called electioneering communications. It would cover 365 
days a year, whether it is an election year or not. It would 
cover expenditures that talk about important issues. I think--
--
    Senator King. Don't you think the American people have a 
right to know who is trying to influence their position on 
policy or on elections? Isn't that part of the information that 
they should have?
    Mr. Keating. No, in fact, I do not. I think it is pretty 
clear during the civil rights movement, it was clear if people 
were behind the civil rights movement in the South, whether 
they were black or white or any other color, they were going to 
be subject to harassment or many, many, many worse things.
    Senator King. It seems to me there is a difference----
    Mr. Keating. Senator--let me finish answering, if I might. 
Just think back to, and even today, in some states, if you are 
a member of an organization that fights for LGBTQ rights, you 
do not want to be disclosed necessarily in some of these very 
conservative states because you will face discrimination in 
hiring or you may lose the job that you are at or you may not 
get a job.
    This is still very sensitive in some areas of the country. 
I think it is very important that we have to consider there are 
going to be some very unpopular causes. It could be, say, for 
example, during the Vietnam War when people were first against 
that, it was very unpopular.
    I think we have to keep in mind that we have to protect 
minority viewpoints that may become majority viewpoints. We 
cannot try to suppress the ability for people to get their 
message across. That is what this bill would do.
    Senator King. I understand the argument. I understand the 
argument. I understand the NAACP case. But it seems to be there 
is a line where if you enter the political process by 
engagement in candidate advocacy, that that is a place where 
the right of the public for the information contained by who is 
contributing overcomes the danger of harassment or 
intimidation. My time is up, Madam Chairman. Thank you.
    Chairwoman Klobuchar. Excellent. I think I will be ceding 
my time to you more often, Senator King. Very good job. Senator 
Hagerty.
    Senator Hagerty. Thank you--get my microphone on here. Mr. 
Keating, can I stay with you, please. I want to talk about the 
chilling effects of donor disclosure that actually occur under 
the DISCLOSE Act.
    As I understand it, the DISCLOSE Act would require groups 
engaged in political speech, like nonprofit groups, to disclose 
the names and addresses of their significant donors and their 
administrators. Is that correct?
    Mr. Keating. Yes.
    Senator Hagerty. Then, what would be the likely effect of 
requiring nonprofits and other groups to disclose the names and 
addresses of their supporters as this unfolds?
    Mr. Keating. Well, look, I think for the popular groups, 
they probably will not have much impact if they are 
concentrated in a particular geographic location. But even 
there, they may see an impact. But I think for many, many 
groups, what we will see is groups will choose a combination of 
two different things.
    One is their public communications will become far less 
effective because they will not inform people who their Members 
of Congress are or their Senators, you know, to call on them, 
to take action, whether it is, passing something to restore 
abortion rights or to advocate for lower taxes, whatever issue 
it may be.
    They will either make their communications less effective 
or what they will find is, they will find that donors are just 
simply not going to be willing to give money. Now, we are not 
talking here--you know, as Senator King mentioned, where do we 
draw the line? The answer is, I think, the Supreme Court drew 
the line.
    The line is when you are expressly advocating for a 
candidate or against a candidate, urging the election or defeat 
of a candidate, that is where the line should be drawn.
    I think that when groups are advocating on policy for 
social change, for improving the United States through passing 
legislation or repealing bad laws, we have to protect the 
people that are advocating for these changes that are not the 
majority view yet. That is why this bill is so overreaching in 
its impact.
    That is why the ACLU has expressed concerns. That is why 
the Alliance for Justice has expressed concerns. There is a lot 
of concern about this across the spectrum. A lot of the liberal 
groups, unfortunately, are not willing to speak out on this, 
but I can tell you that a number of them are quite concerned 
about this legislation.
    Senator Hagerty. Well, some of the aspects of the 
legislation I would like to dig into a little bit more closely, 
because the regulations themselves, I think, that would come 
from this legislation can be confusing and chill speech.
    First, I would like to go to the PASO standard that 
determines whether the speech promotes, attacks, supports, or 
opposes the figure that is being either criticized or talked 
about, which is vague. It is impossible to objectively 
administer.
    Think about the deceptive and coercive requirements, like 
forcing groups to declare whether they support or oppose public 
officials, even if they do neither. You think about the 
oppressive disclosure requirements that are required in order 
to even engage in political speech.
    You went through an example where 18 seconds of a 30 second 
ad would be eaten up just to meet the disclosure requirements. 
Wholly impractical. Let's take another example. We could take 
another real life scenario like the one you proposed.
    But let's assume that a nonprofit, nonpartisan group were 
to spend $15,000 to run just 15 second local television ads 
urging their Senators to do more to stand up for crime victims 
and tougher sentences for violent criminals.
    Let's say the groups are funded mostly by family members of 
violent crime victims, and some of them may have made donations 
more than $10,000. Such an ad might be determined to fall under 
the new definition of applicable public communication, which 
incorporates today's PASO standard. Is that correct?
    Mr. Keating. Absolutely. That is definitely correct.
    Senator Hagerty. If it is considered an applicable public 
communication, then this nonprofit group would have to declare 
whether it supports or opposes the Senators it mentions, even 
if it does not, in fact, support or oppose them, and instead is 
just advocating for crime victims. Isn't that correct?
    Mr. Keating. That is correct. I think one of the problems 
with this legislation is it would force organizations and the 
Federal Government to publish misinformation. We have heard a 
lot of concern publicly about misinformation, including from 
this body in the Senate, the United States Senate, about 
misinformation.
    Here is a piece of legislation requiring groups to report 
misinformation on public forums, which would then be carried by 
the media. That is not the only element of misinformation.
    A lot of the donors, so-called donors that would be 
reported and associated with these ads, in fact, had never seen 
the ads, may not agree with the ads, yet would be either 
published on the basis of the ad itself or in public reports 
saying they financed it, which would be totally false in some 
instances.
    Senator Hagerty. Very troublesome. Thank you, Mr. Keating.
    Chairwoman Klobuchar. Thank you very much. Next up, Senator 
Padilla.
    Senator Padilla. Thank you, Madam Chair. From following the 
train of thought in the previous answer to the previous 
question, but let's move forward here. Now, under the DISCLOSE 
Act, organizations spending more than $10,000 on campaign 
related activity would be required to disclose any donor who 
contributed more than $10,000, which is, in my opinion, a large 
sum of money to fund that activity.
    Donors who give less than that amount would not need to be 
disclosed. This sort of basic transparency would not affect 
small dollar donors but would reveal the small segments of 
society that is spending tens of thousands or hundreds of 
thousands, in some cases even millions of dollars to influence 
the outcome of elections and by extension, public policy.
    I think disclosure would also help voters and citizens 
broadly understand who is trying to influence and why. Sounds 
like common sense policy. Those that seek to use their outsized 
wealth to gain an outsized voice in elections and policy should 
not be able to do so anonymously. Yet critics claim that 
forcing disclosure of these large donors will subject those 
individuals to harassment or danger. Mr. Weiner, I know we 
touched on this a few minutes ago, but can you respond to the 
specific criticism that donor disclosure will lead to donor 
harassment?
    Mr. Weiner. Of course. Thank you, Senator. I think that we 
should start with a common premise, which is that everybody in 
our society deserves to be safe when they engage with the 
political process. But I am mindful of Justice Scalia's 
admonition that requiring people to stand up in public for 
their political acts fosters civic courage without which 
democracy is doomed.
    Yes, it is not acceptable to harass donors. It is not 
acceptable--violence is not acceptable. But the right to speak 
is not the right to speak free from criticism. You know, we 
have had millions upon millions of Americans who have been 
subject to disclosure at the threshold for candidates and 
actual harassment and reprisals are rare.
    There is also, I would like to note, an exception in this 
legislation for donors who face a real threat to their safety 
as a result of donation. I think in the vast majority of cases, 
no, this is not actually a serious concern and a good objection 
to disclosure.
    Senator Padilla. Okay. Thank you for that. You know, before 
I ask my next question, which is specific to the Citizens 
United case. I sort of take a step back and look at the impact 
not just the Citizens United but Shelby v. Holder.
    Right, it seems that in the last decade the Supreme Court 
has specifically made it harder for some people to vote and 
easier for the wealthy to influence elections. Bad combination. 
Now in Citizens United, specifically, the Supreme Court 
unleashed a torrent of unlimited political spending, billions 
of dollars in the last 10 years, on the basis of two 
assumptions. Correct me if I am wrong, this analysis.
    Number one, that spending would be accompanied by both 
independence and transparency. The Court reasoned that if 
expenditures were independent, that they would not necessarily 
lead to the undue influence or corruption.
    The Court also reasoned that transparency would safeguard 
political integrity. Mr. Weiner, also for you, in the decades 
since the Citizens United decision, how have these two 
assumptions underlying the Court's holding fared? Are 
independent expenditures actually independent and transparent?
    Mr. Weiner. Well, thank you, Senator. No, they are not. 
Many, many, many independent expenditures are actually, of 
course, carried out by groups that have close, close ties to 
candidates.
    What you see is also, obviously, fundraising for these 
groups with candidates and elected officials attending and even 
donors being able to lobby for their favored policies. Then, of 
course, as we have been discussing, neither are many of these 
expenditures transparent.
    I think neither of those predictions, as sadly with many of 
the predictions in Shelby County, have proved to come to pass.
    Senator Padilla. Thank you. Thank you, Madam Chair.
    Chairwoman Klobuchar. Okay. Thank you very much, Senator 
Padilla. Senator Hyde-Smith is next.
    Senator Hyde-Smith. Thank you, Chairwoman. I also want to 
thank the panelists for being here today. Certainly appreciate 
that. My question is directed to Mr. Keating. In your 
testimony, you stated that the DISCLOSE Act would harm the 
rights of Americans guaranteed by the First Amendment to freely 
speak, publish, organize into groups, and petition.
    How significant are the risks to our First Amendment rights 
of free speech and association under the disclosure 
requirements in this legislation?
    Mr. Keating. Well, I think they are very significant. We 
would see a real atrophy of national organizations being able 
to influence policy. I think there is a great deal of confusion 
about what is actually in this proposal.
    Just calling something a campaign related disbursement does 
not make it a campaign related disbursement. We are talking 
about expenditures on communications to the public that could 
be even a year or more away from election. It does not do 
anything to urge anyone to vote for or against any particular 
candidate.
    Yet this bill would sweep that in. It is really a form of 
not only a campaign finance law, but it would be the first ever 
legislation to require disclosure for grassroots lobbying 
efforts. This was tried in the 1970's, and it generated a huge 
amount of opposition across the political spectrum.
    I think if there was understanding about that today, and in 
fact I think if there is a danger of this actually becoming 
law, I think a lot of groups would emerge and say, look, we are 
all in favor of disclosure for actual campaigning for or 
against candidates, but we are not in favor of disclosure for 
advocating on important public issues.
    Whether you are on the left or on the right, there are 
going to be causes that are minority viewpoints where people 
are simply not going to be willing to write a check or make a 
donation to support an unpopular cause.
    That could be because where they live, it is unpopular, or 
it could be unpopular throughout the country. I think, I really 
fear if this bill becomes law, over time, over decades, it will 
make it far more difficult for minority viewpoints to appeal to 
our fellow Americans to say, look, rethink things, we need to 
make these changes nationally.
    I would encourage the supporters of this to take a look at 
the bill and to try to draw a better line between what is 
actually campaign related and what is actually pushing for 
improving our Government.
    Senator Hyde-Smith. Thank you. Also, Mr. Keating, what are 
the risks associated with publicly disclosing the names and all 
of this personal information on donors to super PACs, 
considering the growing risk associated with the cancel culture 
in this country in which individuals, businesses, or 
organizations are targeted with protests or threats for the 
positions that they might take.
    Mr. Keating. Well, look, I think it is already a problem 
right now. I think there are many people who--I mean, look, 
there are millions of people that give to candidates, but I 
think there are millions more that do not.
    A reason why they do not is because they are smart enough 
to know if they give over $200 or if they give through ActBlue 
or WinRed, even like $1, their name will be on the internet 
forever and associated with that candidate, and if that 
candidate becomes an elected official, possibly everything good 
or bad that candidate has ever done. I think we are already 
seeing some suppression.
    I think a lot of small donors are simply not willing to 
step forward to support candidates and parties. But I really 
fear that if we expand this to advocacy on issues, as this 
proposal would do, we are going to see it very difficult to 
push for legislation to improve our Government over time, over 
many years, and many decades.
    Senator Hyde-Smith. Thank you. I think everybody agrees we 
all want fair and free elections. But other members of the 
panel seem more than willing to embrace a broad expansion of 
complex financial disclosure requirements outlined in the 
DISCLOSE Act. In your view, could the goals of this legislation 
be accomplished without infringing on First Amendment rights 
and a tangle of new bureaucratic mandates?
    Mr. Keating. Well, look, I--there are many different goals 
that have been expressed, so I am not really sure what the 
goals are. I think if the goals were more clearly and narrowly 
stated, such as if money is given for independent expenditures, 
that should be disclosed.
    If that is the goal, then yes, I think you could do some 
things that would come a lot closer to that goal without 
infringing on First Amendment rights, as this bill does. But 
the bill does not do that.
    You know, it does not do the other things. It does not 
address the other things that are about so called independence 
that one of my colleagues on the panel have spoken about.
    Senator Hyde-Smith. Thank you. My time has expired.
    Chairwoman Klobuchar. Thank you, Senator. I am going to ask 
my questions now. Then I am going to turn over the hearing to 
Senator Merkley. I thank him for his leadership in this area.
    I am going to start with asking you, Mr. Weiner, that 
question that Senator Hyde-Smith asked of Mr. Keating, and that 
is, are the goals being accomplished here?
    I just kind of look at it a very different way, and that is 
that the goals are not being accomplished if there is over $1 
billion in secret money and we do not know who is spending it 
and who the donors are. Go ahead.
    Mr. Weiner. Thank you, Senator. I would say the goals are 
being accomplished and I would actually say this is quite 
tailored legislation.
    Chairwoman Klobuchar. No, I mean, without the legislation. 
That was the question. Like, are we finding out enough 
information about this?
    Mr. Weiner. Yes, I understand. Apologies.
    Chairwoman Klobuchar. No, I was not clear.
    Mr. Weiner. I would say we are not. Again, we have seen 
more than $1 billion in secret spending just in the last 
election cycle. I want to address one thing that Senator King 
raised.
    Chairwoman Klobuchar. Yes.
    Mr. Weiner. The FEC data about dark money is grossly under 
conclusive. It does not include transfers to other 
organizations, which is the increasing trend to sort of do 
donations to super PACs.
    Nor does it include a lot of undisclosed electoral 
spending, like on the internet. Without this legislation, no, 
we are not addressing these goals. We are seeing large and 
growing amounts of spending not being disclosed.
    Chairwoman Klobuchar. To clarify again, something that Mr. 
Keating talked about, the focus of this bill is related to 
campaigns and candidates. If there are issue ads, it is related 
to candidates, is that correct?
    Mr. Weiner. Yes, Senator. I would note that the standard 
that Mr. Keating was referring to is about promoting, 
supporting, attacking or opposing the election of a candidate. 
My position, and I am not a member of the FEC, is that this 
bill would not cover it.
    I think it is pretty clear issue advocacy that mentions a 
candidate. There would have to be an electoral reference. It is 
about the election, not just about the individual officeholder.
    Chairwoman Klobuchar. Thank you. Ms. Solomon, time and time 
again, I think about and see the numbers on how people have 
been losing trust in elected officials and in institutions 
involved in government. I think it is really disturbing for a 
democracy, no matter what political party you belong to.
    The League of Women Voters' mission has always been to 
support our democracy, hold debates, and support civility in 
our politics. When people see outside groups drowning out the 
voices of voters, how does that impact their desire to vote and 
participate in our democracy?
    Ms. Solomon. Well, thank you, Senator. I would say that the 
influx of big and secret money makes it hard for voters to feel 
like they can compete, quite frankly, when their voice is not 
necessarily being heard, it is being drowned out by special 
interests.
    I would say another thing that is quite frustrating we hear 
from voters is that most people do not even have $400 to get to 
the next paycheck if some kind of an emergency arrives, right.
    But yet, some can contribute more than $10,000, have a 
contribution to what decisions are being made, who is being 
elected to office, and they do not have the ability to know who 
those individuals are who are influencing their votes.
    There is so much confusion that has been created as a 
result of non-disclosure that it only furthers the mis- and 
distrust that exists now today among many average American 
voters.
    Chairwoman Klobuchar. Okay, very good. Thank you. Good 
answer. Commissioner Mangan, there you are out in Montana where 
we all wish we were right now. Could you address that 
legislation that you passed in 2015 with bipartisan support, 
which actually requires the disclosure of donors to outside 
groups spending money in Montana's state and local elections?
    I just find this so interesting because, you know, I have a 
feeling that the world did not fall down there when you did 
that. You got bipartisan support. As I pointed out, in our own 
country, traditionally we have had bipartisan support for 
disclosure.
    Even these incredibly conservative Supreme Court Justices 
in the Citizens United opinion voiced their belief that it is 
Constitutional to have this kind of disclosure. Could you talk 
about how Montana was able to find bipartisan agreement to 
address this secret money in elections? How have Montanans 
responded to that?
    Mr. Mangan. Well, thank you, Senator. Of course, you are 
always welcome to come visit Montana.
    Chairwoman Klobuchar. I can see the sun. Maybe that sun 
coming in. All right, keep going.
    Mr. Mangan. You know, I can only speak to Montana. During 
that time for the DISCLOSE Act, Citizens United and a number of 
local issues in Montana, where there were unattributed ads 
attacking candidates of both parties, they had--enough is 
enough. The Montana legislators got together, worked together, 
and crafted the DISCLOSE Act with both Republicans and 
Democrats.
    It has been successful in Montana because Montanans want 
that disclosure, and they want to be able to know who is 
spending money and influencing their democracy. We have just 
come to expect that I think. While it is only, of course, from 
local to statewide races, we hear those questions about Federal 
races as well. Of course, we cannot answer.
    Chairwoman Klobuchar. Exactly. Probably a good last 
question from me is about that, that your Act, of course, 
because of your jurisdiction, only applies to state and local 
elections. It seems to me that leaves a major gap in the 
disclosure requirements for any kind of ads or other activity 
related to elections in Federal elections.
    Could you talk about that complete, I think, absurd 
disparity because of the amount of money that is spent in 
Federal elections. How you believe that should be closed as a 
loophole for your citizens no matter what party they are in. 
They get to find out how people are spending money on state and 
local elections, but, oops, not for the Federal Government. 
Those elections can be, anyone can donate to anything and spend 
money, and you are never going to know what it is.
    Mr. Mangan. Right. Thank you, Senator. We are fortunate in 
Montana that I get to talk to candidates, committees, and 
citizens every day on this very subject.
    While a committee or a candidate for a local school 
election or a school library, for example, would have to 
disclose those over $50 contributions, those folks do ask about 
why we do not see that in Federal races, when folks are 
spending thousands and millions of dollars, yet on a small 
local race, the stuff that they want to see, they want to know 
who is involved in their community's elections, they do not see 
that on a larger scale, it is a question that we cannot answer, 
unfortunately.
    Chairwoman Klobuchar. Okay. Very good. Thank you very much. 
Senator Cruz is up next. I will turn the gavel over to Senator 
Merkley.
    Senator Merkley. Senator Cruz.
    Senator Cruz. Thank you, Madam Chair. Thank you, Mr. Chair. 
There was a time when Democrats supported free speech. There 
was a time when Members across the aisle actually believed in 
the First Amendment. Unfortunately, that time has long since 
passed. In 2014, Congress considered an amendment from 
Democrats to repeal the free speech provisions of the First 
Amendment.
    I was at the time the Ranking Member on the Senate 
Constitution subcommittee, the Judiciary Committee. I led the 
fight against it. Ultimately, that amendment came to a vote on 
the Senate floor and every single Senate Democrat voted to 
repeal the free speech protections of the First Amendment.
    [Technical problems.]
    Senator Cruz. Sure. It was a vote that would have given 
Congress plenary power to regulate--the initial version was to 
regulate any and all political speech by anyone. It literally 
would have said any expenditure of money for political speech.
    It would have said that if a little old lady went to a Home 
Depot and spent $5 to buy a cardboard sign and a stick to say 
vote the bums out, that Congress could make it a felony and put 
her in jail. It also could have given Congress the ability to 
criminalize union organizing.
    The Democrats realized that that version of the amendment 
was too extreme, even for them, so there was a second version 
that Senator Durbin offered that limited its restrictions only 
to corporations. However, it had plenary authority to any 
political speech by a corporation.
    Now, I will point out Paramount Pictures is a corporation. 
Simon and Schuster is a corporation. NBC is a corporation. The 
NAACP is a corporation. Planned Parenthood is a corporation. 
The Brennan Center is a corporation.
    Under the proposed amendment, Congress would have had 
blanket authority to regulate any and all political speech by 
any corporation in America. It was blatantly unconstitutional, 
and every single Democrat voted for it when it was voted on the 
floor.
    There was a time, by the way, previously when Democrats 
tried to repeal the First Amendment to the Constitution, the 
free speech protections, there were a handful of lions of the 
Senate that spoke out against it.
    Russ Feingold courageously spoke out against. Ted Kennedy 
gave a floor speech saying we have not amended the Bill of 
Rights in over 200 years and now is no time to start. I gave a 
floor speech with a picture of Ted Kennedy behind me, nearly 
scared my father to death when he saw me on TV with Ted Kennedy 
behind me.
    But I pleaded, is there not one Ted Kennedy on the 
Democratic side who believes in free speech? There was not a 
single one. Unfortunately with this bill that is combined by 
the recent willingness of the left to engage in threats of 
violence and intimidation against speech that they do not like.
    We saw that with Antifa and Black Lives Matter riots all 
across this country, with Democrat politicians turning a blind 
eye that culminated in the current Vice President of the United 
States, Kamala Harris, raising money to bail out of jail 
violent rioters threatening fellow citizens.
    We saw it just recently with a leak of a draft decision of 
the Supreme Court and then left wing groups publishing the 
addresses of Supreme Court Justices and violent rioters going 
to the homes of Supreme Court Justices and the Biden Department 
of Justice refusing to enforce Federal criminal law that makes 
it a crime to protest at the home of a Justice.
    But our Attorney General, Merrick Garland, refuses to 
enforce that law. The result of that, as we saw just weeks ago, 
a deranged man arrested for the attempted murder of Justice 
Brett Kavanaugh. That is truly a toxic stew.
    Of the current Democrats' unwillingness to protect free 
speech and willingness to engage in violence and threats of 
violence against their political enemies, what does that mean 
for something like the DISCLOSE Act?
    What we saw in California in 2008 when there was a 
referendum on the ballot in support of traditional marriage and 
a majority of Californians, bright blue, California, voted in 
support of traditional marriage, and the names of those 
contributors were outed and left wing groups published their 
home addresses and people got fired for their job for, by the 
way, contributing to what was then the political position of 
people like Barack Obama and Hillary Clinton.
    Yet people got fired for their jobs for daring to speak 
out. Look, the landmark case on this is NAACP v. Patterson. In 
that case, the State of Alabama, run by Democrats, wanted to 
target the people that were members of the NAACP. They wanted 
to go after them and persecute them. Sadly, it was the 
Democrats that founded the Klan and they wanted to go after the 
NAACP.
    That case went to the Supreme Court in 1958, and the 
Supreme Court unanimously ruled that the NAACP, you could not 
force them to hand over their membership list because it 
violates their First Amendment right to free association.
    This DISCLOSE Act is designed to target and harass speech 
that the left does not like. It is blazingly unconstitutional. 
I will mention something though to my Democratic colleagues. My 
time has expired, but I will say, if you want to see more 
disclosure, and if you think the current system is idiotic, and 
I think the current system of super PACs is idiotic, every year 
in Congress I have introduced legislation called the Super PAC 
Elimination Act.
    It would do two very simple things. It would, number one, 
allow unlimited individual contributions to campaigns, not 
corporations, not unions, individuals. Number two, it would 
require immediate 24 hour disclosure of any contributions.
    It does not ban super PACs, but as a practical matter, they 
would fade away because every candidate would rather control 
their own message rather than some other group. Yet I have yet 
to get a Democrat willing to support it.
    I want to ask. I apologize, one question if I could ask, 
Mr. Weiner. The Brennan Center supports transparency and 
disclosure. Over the existence of the Brennan Center, how much 
money has been given to the Brennan Center specifically by 
George Soros?
    Mr. Weiner. Senator, I do not know how much money 
specifically, but I will say that----
    Senator Cruz. Will you answer it when I ask you in writing?
    Mr. Weiner. Senator we will be happy to respond. But I just 
want to say that. I will happily acknowledge that Open Society 
Foundation is a Brennan Center donor, and we are proud that 
they have donated.
    Senator Cruz. But will you answer the question or give me a 
lawyerly dodge? Because we both know how to do both of those.
    Mr. Weiner. Senator, we will be happy to respond to a 
request.
    Senator Cruz. Thank you.
    Senator Merkley. Thank you very much, Senator Cruz. I want 
to turn to you, Ms. Solomon. We heard earlier that the current 
climate has, if you will, intimidated small donors from 
participation. If we look at the participation of small donors 
over the last decade, has participation grown or declined?
    Ms. Solomon. Small dollar donors, I would say, has slightly 
increased over the past decade. I do not think that it 
necessarily excludes small dollar donors. What I would like to 
say is that small dollar donors feel that they do not have the 
same level of impact.
    If you are contributing $25 or $75 or $100 and as opposed 
to somebody who is contributing $25,000, $50,000, $1 million, 
who do you think people feel that their elected officials will 
pay more attention to?
    The question, I think is important, but it is also the fact 
that these large donations drown out the small dollar donors as 
individuals, and they feel like they have less power in 
deciding what happens to our country.
    Senator Merkley. Ms. Solomon, I think you have stated it 
very well. I think the numbers of small donors have actually 
increased very significantly over the last decade. It is not 
that they are reluctant to participate, they are participating 
in significant numbers.
    But they are concerned that whereas they might be able to 
donate $25 or $100 or maybe $200 and be disclosed, that there 
are groups out there that contribute millions of dollars, and 
that those folks are going to get a lot more attention from 
Members of Congress.
    Ms. Solomon, as we think about the principle of Government, 
of, by and for the people, the whole idea that power flows up 
from the people, having power flow down from massive 
corporations in massive donations, is that a conflict with the 
fundamental premise of our Democratic Republic?
    Ms. Solomon. I believe that it does. It is a huge conflict. 
I think part of the challenge that we face as a country, quite 
honestly, is that the lack of trust in Government has increased 
so, so significantly because of a lack of transparency. People 
question the motivations behind decisions that are being made 
by their elected leaders, and that is concerning.
    When elected leaders, their integrity is questioned--we can 
all agree that we are going to disagree, right. We know that 
happens in this building every single day. But the lack of 
trust is so great at this point that people are actually 
questioning the integrity of their elected leaders.
    Are they good people? Are they bad people? How are they 
influencing the election? They believe that oligarchs and 
corporations are influencing your decisions. That does not feel 
good.
    Senator Merkley. Yes. Thank you. Mr. Weiner, we heard 
before that it is easy to draw a distinction between ads that 
advocate for a policy and ads that are campaign involved. This 
ad broadens--this Act, DISCLOSE Act broadens communications set 
to--broadens the communications for disclosure that promote, 
attack, support, or oppose a candidate. It does not broaden it 
to, as I understand it, to policy advocacy. Am I correct in 
that reading?
    Mr. Weiner. Yes, Senator, you are correct. In fact, it is 
the election of a candidate. I would say that there has to be a 
reference to an election and there has to be the promotion of 
electoral results. I do think that that is a crucial 
distinction that narrows the scope of the bill.
    Senator Merkley. Why is it, why is it legitimate, Mr. 
Weiner, for us to ask for disclosure when an ordinary citizen 
donates more than $200?
    Mr. Weiner. Well, I think, Senator, that, you know, 
disclosure arms the voting public with information, and that we 
have long understood that candidates and others should disclose 
the sources of their funding and that that was an appropriate 
threshold for that.
    I think that, and again, you know, I come back to the words 
of Justice Scalia that ``requiring people to stand up for their 
public acts fosters civic courage, without which democracy is 
doomed.'' I think that is a well-established norm in our 
political process and one that has become very important to the 
integrity of our elections.
    Senator Merkley. Mr. Mangan, Montana, I recall at one point 
was controlled by the, I believe the proper term was the Copper 
Kings, and the citizens of the state said this is wrong. We 
need to have our Government, our state Government controlled by 
the people. It is a particular example.
    Does it therefore make sense that, if you will, candidates 
in Montana, the individual donations for a campaign over $200 
are disclosed, but if an independent campaign receives massive 
donations, that those donations can come directly from a very, 
very powerful corporation.
    Mr. Mangan. Well, in my tenure, of course, citizens have, 
you know, voiced their feelings very strongly. You know, we 
have not seen the type of backlash that has been discussed here 
today. We have had disclosure a number of years on post-
election and election communications.
    But as far as any local races or statewide races, all 
donors are required, over $250 or more, required for committees 
to file and report contributions and expenditure. It is as 
simple as that. Montanans have embraced that.
    Again, we have not seen any backlash as far as, you know, 
things that we have heard today in Montana. It is just the 
opposite. Montana has come to expect and want that disclosure.
    Senator Merkley. Thank you. Senator King.
    Senator King. Just want to followup very briefly with 
Senator Cruz. I think he makes an interesting proposal. I would 
argue that we have what he proposed, except we do not have the 
disclosure. We have unlimited contributions.
    The system we have now, you can give an unlimited 
contribution through one of these dark money vehicles, but the 
only thing we do not have is disclosure. It is his position. I 
remember him stating at some years ago, unlimited individual 
contributions and full disclosure. I think we have unlimited--
we have unlimited contributions, we just do not have 
disclosure.
    Mr. Keating, I think we have more agreement than might 
appear because as I read the bill, and I would hope you will 
supply perhaps after the hearing more detail, but this bill is 
very narrowly targeted to candidate elections. It is not about 
issue advocacy.
    The principal provisions, Section 324, any covered 
organization that makes campaign related disbursements.
    Then you go back several sections later and it defines 
campaign related disbursements, and it says, an independent 
expenditure which expressly advocates the election or defeat of 
a clearly identified candidate for election for Federal office 
or is the functional equivalent of express advocacy because 
when taken as a whole, it can be interpreted by a reasonable 
person only as advocating the election or defeat of a candidate 
in an election for Federal office.
    That is what we are talking about here. We are not talking 
about an LGBTQ group putting an ad on TV, generally talking 
about gender equality. We are talking about advocacy of 
candidates. Am I reading the statute wrong? Is there a 
provision that also talks, I know about an applicable public 
communication, but that is also defined.
    It refers to a clearly identified candidate for election 
for Federal office and which promotes or supports the election 
of a candidate for that office. It looks like what you are 
arguing against, which is issue advocacy, is not covered by 
this bill. Am I misreading the bill?
    Mr. Keating. Yes, I think you are. I think--I will give you 
an example. I am going to read you an actual ad that a three-
judge panel of the District of Columbia, District Court ruled 
that the ad could be interpreted as taking a position, I am 
quoting from the Court's ruling, taking a position against the 
identified candidate.
    Here's the ad. ``Let the punishment fit the crime. But for 
many Federal crimes, that is no longer true. Unfair laws tie 
the hands of judges with huge increases in prison costs that 
help drive up the debt. For what purpose? Studies show that 
these laws do not cut crime. In fact, soaring costs from these 
laws make it harder to prosecute and lock up violent felons. 
Fortunately, there is a bipartisan bill to help fix this 
problem.
    The Justice Safety Valve Act, bill number 619. It would 
allow judges to keep the public safe, provide rehabilitation, 
and deter others from committing crimes. Call Senators Michael 
Bennet and Mark Udall at (202) 224-3121. Tell them to support 
S. 619, the Justice Safety Valve Act. Tell them it is time to 
let the punishment fit the crime.''
    Now that Court looked at that bill and said--that 
advertisement and said it could be construed as taking a 
position against a candidate because presumably the group would 
not have run the ad asking the two Senators from Colorado to 
come out in support of the bill or support the bill.
    Senator King. Well, it seems to me----
    Mr. Keating [continuing]. If we are talking about express 
advocacy for a candidate, we do not need the PASO standard. The 
standard that you read, no other reasonable interpretation, is 
sufficient. The question would be, what does this PASO standard 
mean if it does not mean that? That is the problem. No one 
knows what it means. No one knows where the line is.
    Senator King. If we can better draw the line, if we can 
make the definition tighter, do I understand you to say that 
you have no objection to the revelation of the identity of 
donors, to clearly what we would all agree would be political 
advocacy of a particular candidate for or against?
    Mr. Keating. Well, again, it depends on the details, and, 
you know, the exact language and the rest of the structure to--
--
    Senator King. Assume for a moment, we could draft a 
language that would narrowly tailor it strictly to elections 
and political candidates. Would that be satisfactory to you?
    Mr. Keating. Well, look, we are not going to come out in 
favor of it. But I can tell you, it is certainly possible to 
draw this in a more narrow fashion that I think will find 
broader support and have less impact on First Amendment rights 
to join groups and speak to fellow Americans.
    Senator King. Thank you. Thank you, Mr. Chairman. Thank 
you. I think that is an important point.
    Senator Merkley. It is, indeed. We did not hear that that 
he would necessarily, his organization would not support it, 
even if it was narrowly drafted. But he would see it as an 
improvement, is what I gathered. While I have you all here as 
experts, I wanted to ask a little bit about the corporate role 
in our campaigns.
    A few years ago, I asked my team to look at the form of 
corporations of when our Nation was founded, when our 
Constitution was written, and whether there was anything 
resembling the modern corporation.
    They reported there were chartered corporations for 
specific purposes, but nothing resembling the structure of the 
modern corporation. Would you all agree with that, Ms. Solomon 
and Mr. Weiner?
    Ms. Solomon. Yes, sir.
    Mr. Weiner. Yes.
    Senator Merkley. I found it very interesting. The Court 
said, you know, a corporation is a person. Now, they also often 
talk about explicit words in the Constitution when they are 
holding an originalist conversation. Does the word corporation 
appear in the free speech clause of the Constitution?
    Mr. Weiner. No, Senator.
    Senator Merkley. Is there any kind of an indication 
anywhere in the discussion about freedom of speech in the 
Federal papers, for example, Federalist Papers, that a 
chartered corporation, even of that type that existed in 1787, 
is the equivalent of a person or should have free speech 
powers?
    Ms. Solomon. Not that I am aware of, sir.
    Mr. Weiner. Not that I am aware of.
    Senator Merkley. The Court says that the Supreme Court has 
said, so this group of individuals represented by this 
corporation has an interest in expressing its viewpoint in our 
society and should have the full protection to do so.
    I assume they are referring to the group of the owners of 
the corporation. Those are stockholders. Do stockholders have 
complete power over what the group says? Do they vote on what 
the group says in public discourse? Is it their speech, the 
stockholder speech, or is it simply speech chosen by the 
corporate officers?
    Mr. Weiner. Well, Senator, very often stockholders have 
very little control over the speech. It is their money, but it 
is not actually speech that they can control.
    Senator Merkley. Is it not the case that stockholders 
sometimes ask the corporation, as an owner, I should have the 
right to know how you are spending money, and the corporation 
officers say, hell no.
    Mr. Weiner. In fact, often corporations spend money 
diametrically opposed to the views and the values of their 
stockholders.
    Senator Merkley. How can this be the speech of the 
corporation if it is actually speech in which the owners 
disagree and are not even given the privilege of knowing what 
is being said?
    Mr. Weiner. Well, Senator, I think what you are getting at 
is that the framers of the Constitution could not have 
envisioned the form of corporations have taken. The fiction 
that a corporation is speaking for its stockholders is just 
that, it is often a fiction.
    Senator Merkley. I think about----
    Mr. Keating. Can I say something about this?
    Senator Merkley. Well, if I ask you a question, you can.
    Mr. Keating. Okay. I figured you were asking a question of 
the panel. I am sorry.
    Senator Merkley. No, I am not. I am asking Mr. Weiner and 
Ms. Solomon, because they know something about this. I struggle 
with the point that you made, Ms. Solomon, that ordinary 
citizens feel like their modest donations are outweighed by an 
extraordinary ability of companies, corporations that have 
billions of dollars of assets, not the millions or tens of 
millions, billions, sometimes their corporate profits are in 
the multi digit billions.
    That that type of concentration of power, and then it is 
not even the owners of the corporation, it is simply the 
officers who are deciding what has been said--so they are kind 
of stealing the speech from the owners, that this amplification 
and you I think you use the word drowns out the advocacy of 
ordinary Americans. Have I captured your sentiment?
    Ms. Solomon. Yes, sir. I would add that it also creates a 
chilling effect on voters who think that their vote does not 
matter.
    Senator Merkley. In fact, if an individual has an 
independent campaign on their behalf that is spending tens of 
millions of dollars, and the rest of their donors are spending 
$25, $100, who is that elected leader going to pay the most 
attention to?
    Ms. Solomon. Those who are making the greatest investment 
in their success, and that would be in getting elected.
    Senator Merkley. We just had a race in Oregon where a PAC 
decided to put $10 million into a primary for a Member of 
Congress, an individual who has not served in any local office. 
But it was a Bitcoin billionaire that decided, I want this guy 
elected and it certainly seemed to me like citizens had the 
right to know where that millions of dollars of campaign ads 
were coming from to understand who was behind it.
    They should have the right to know that a Bitcoin 
billionaire was trying to get somebody elected with no 
political experience because they thought that person would be 
a bitcoin advocate. Doesn't--isn't that relevant to the debate 
in the public square where you have an exchange of ideas and 
people have to stand up and own their advocacy?
    Shouldn't the citizens of Oregon get to know? In this case, 
they did know, but because it was publicized. But shouldn't 
they have the right to know who is behind these massive sums in 
our campaign?
    Ms. Solomon. Absolutely. I think one of the things, I know 
there was a comment earlier, I believe, from Senator Cruz who 
talked about cancel culture and people fearing being canceled. 
I would say there is a huge difference between canceling 
somebody and accountability.
    You just cannot say or do anything without being held 
accountable for the results of those words, actions, 
investments. I think it continues to sit upon those of us who 
are voters who maybe do not work on the Hill, who are not 
elected officials, who just really care about knowing who is 
investing in our elections, who is making decisions on our 
behalf. We do not want it to be corporations.
    We want to be able to have voice over our vote. I think 
Shirley Chisholm says it best when she spoke about being 
unbossed and unbought. The American people want elected leaders 
who are unbossed and unbought.
    Senator Merkley. You know, I think about that difference 
you are describing and going back to this example in Oregon. 
The voters who found out that this massive ads were being 
funded by a Bitcoin billionaire, that did not cancel the 
Bitcoin billionaire's voice. That voice was expressed like 
every single ad break on every single channel.
    There was no cancellation at all. But there was 
accountability and that the people then knew, because of the 
publicity through newspapers, not because the ad said this has 
been funded by this Bitcoin billionaire, but because 
fortunately the newspapers explained that, and people were 
like, oh, that explains where that is coming from. Mr. Weiner, 
did you want to weigh in on this?
    Mr. Weiner. Well, Senator, I really just want to echo Ms. 
Solomon's point and say that, you know, these are always 
questions of balance. We have also heard a lot about the NAACP 
today, which was, of course, the victim of a campaign of racial 
terrorism in the South, in the Jim Crow South.
    The reality is, like this law, this proposed legislation, 
there will always be situations where we need to balance 
privacy with the public's right to know. But the legislation 
here and the general principle that the people who fund 
campaign spending should be disclosed to the public is well 
accepted in our law and in our traditions and is really 
integral, I think, to what it means to have a political system 
with integrity.
    Senator Merkley. You know, earlier there was an implication 
that it is unconstitutional to require disclosure, but did not 
the Supreme Court say in what I think was an extraordinarily 
corrupt decision of Citizens United that favors Government by 
the powerful over representative Government by the people, a 
complete inversion of the design of our Constitution--
nonetheless, even in that case, did not the majority assume 
that there would be disclosure?
    Mr. Weiner. I would say that the disclosure holding was 
integral to the ruling in Citizens United. It was integral to, 
whatever, however flawed it may have been, the Court's vision 
of how our campaign finance system should be structured. The 
fact that we have yet to make good on the Court's promise of, 
you know, meaningful disclosure is really a grave problem for 
our political system.
    Senator Merkley. I want to thank all of you for coming to 
testify and share your experiences and your knowledge before 
the Senate. This is such an important discussion to the future 
of our democracy. Such an important question as to the 
integrity of our elections and the vision of Government, of, by 
and for the people, not the powerful. The hearing record will 
remain open for one week and we are adjourned. Thank you.
    [Whereupon, at 4:54 p.m., the hearing was adjourned.]

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