[Senate Hearing 117-331]
[From the U.S. Government Publishing Office]
S. Hrg. 117-331
S. 443, THE DISCLOSE ACT
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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
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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
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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.]
APPENDIX MATERIAL SUBMITTED
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