[Congressional Record Volume 156, Number 12 (Thursday, January 28, 2010)]
[Senate]
[Pages S274-S276]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               JOB GROWTH

  Mr. McCONNELL. Mr. President, I thank my friend from Vermont. I hope 
I will not inconvenience him. I have a very short opening statement. I 
thank him for giving me the opportunity to make this statement.
  As always, we appreciate the President coming to the Capitol last 
night. I take him at his word when he says he wants to work with us on 
issues that benefit the Nation and in particular to grow jobs. I would 
like to speak this morning about two areas in particular that meet the 
criteria of bipartisan achievements and job growth--agreements to 
increase our exports and finding more American energy. Those are two 
areas upon which we ought to be able to find bipartisan agreement.
  The President called for increased exports and for the Congress to 
pass trade agreements that have languished under the current majority 
in the Senate. Republicans agree with the need to increase trade and 
with the need to ratify trade agreements with Colombia and other 
important trading partners that so far have met resistance on the other 
side of the aisle. We also support passing a sensible bill to help 
Pakistan establish reconstruction opportunity zones that actually 
increase trade and do not impose self-defeating restrictions. We agree 
with the President's call to pass these agreements. We agree that these 
agreements will lead to more American jobs. The Congress should act on 
these agreements.
  The President also called for producing more American energy. This is 
an area with a huge opportunity for American jobs that cannot--cannot--
be sent overseas. We agree with his call for more clean energy produced 
here in America. We agree with his call for building more nuclear 
plants. We agree with his call for increased offshore exploration for 
oil and gas. We agree with his call for development of clean coal 
technologies. We should build a new generation of clean nuclear plants 
in this country. Senate Republicans support building 100 new plants as 
quickly as possible. We hope Democrats will join us in that effort, 
particularly now with the President's call to action. The President 
could start by moving forward on the nuclear loan guarantee program 
that was included in the bipartisan 2005 Energy bill. He could also put 
forward a plan for dealing with the waste that comes from these plants 
in a safe and secure manner.
  The President and I agree on the need to meet in the middle to find 
bipartisan agreement to grow jobs. I have outlined two specific areas 
where the President and Republicans in Congress agree. We know that 
increased American energy, without a new national energy tax, will grow 
good jobs. We know that increasing markets for our farmers, 
entrepreneurs, and manufacturers overseas through trade agreements will 
grow good jobs. We can get these done, and I hope the President will 
join us in calling on the majority to bring these issues to the floor 
in the Senate.
  One thing we had hoped to hear more about from the President last 
night was the administration's handling of the attempted Christmas Day 
bombing. After 9/11, all Americans recognized the need to create and 
coordinate myriad tools of defense, security, and intelligence to 
protect us from future attacks. That is why Americans are so troubled 
by the fact that the administration seems to have lost sight of this 
essential requirement for national security out of a preoccupation with 
reading the Christmas Day bomber his Miranda rights. Apparently, there 
was little, if any, coordination among key components of the 
administration's national security apparatus on how to treat this 
terrorist who nearly killed 300 innocent people over Detroit on 
Christmas Day. Shockingly, the administration then made the hasty 
decision to treat him as a civilian defendant, including advising him 
of the right to remain silent, rather than as an intelligence resource 
to be thoroughly interrogated in order to obtain potentially lifesaving 
information.
  Republicans have issued a letter to Attorney General Holder demanding 
answers to some of the vital questions that arise out of the 
administration's handling of this attempted attack. It is critical that 
Americans have a full and timely understanding of the policy and legal 
rationale upon which the ill-
advised decision surrounding this narrowly averted calamity was made. 
Until these concerns are addressed, Republicans will continue to raise 
them on behalf of the American people.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I understand I have 10 minutes.
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. LEAHY. Mr. President, I hope the American people watched and 
heard President Obama's speech last night and were reassured. I know I 
was. There are so many things that he covered, I will not try to repeat 
all of them. I would like to expand on one of the very important 
matters he raised. On this, I will wear my hat as chairman of the 
Senate Judiciary Committee.
  The Supreme Court's 5-to-4 decision last week in Citizens United v. 
Federal Election Commission. That decision threatens to allow 
corporations to drown out the individual voices of hard-working 
Americans in our elections. By overturning years of work in Congress, 
years of work by both Republicans and Democrats alike--campaign finance 
laws, and by reversing a century of its own precedent, the 
conservative, activist bloc on the Supreme Court reached an unnecessary 
and improper decision that is going to distort future elections. The 
Citizens United decision turns the idea of government of, by, and for 
the people on its head. It creates new rights for Wall Street at the 
expense of Main Street.
  Congress, on behalf of the American people, struggled for years to 
enact campaign finance reform. Virtually every American wanted campaign 
finance reform. We finally did that in a bipartisan way in the landmark 
2002 McCain-Feingold Act overcoming a filibuster and passing it with a 
bipartisan supermajority. This milestone campaign finance reform 
strengthened the laws, protecting the interests of all Americans by 
ensuring a fair electoral process. It was a matter of serious 
consideration by Congress, and was signed into law by President George 
W. Bush.
  In the 2003 case McConnell v. the Federal Election Commission, the 
United States Supreme Court upheld the key provisions of the McCain-
Feingold Act against a First Amendment challenge. That was consistent 
with 100 years of judicial precedent and law, including a longstanding 
criminal law prohibiting corporations from contributing to Federal 
election campaigns. We have long prevented corporate contributions to 
Federal campaigns, at least since the time of President Teddy 
Roosevelt. The prohibitions included in the Tillman Act were signed 
into law in 1907.
  Now only 6 years after upholding 100 years of precedent, resolving 
the question in McConnell, and after a number of other Supreme Court 
opinions upholding these campaign regulations as needed to ensure 
fairness in elections, a thin majority of the Supreme Court, made 
possible by President Bush's appointment of Justice Alito, has thrown 
out important parts of the law, and they have run roughshod over a long 
line of longstanding Court precedent. This is a threat to the rule of 
law. It overrules congressional efforts to keep powerful, monied 
interests from swamping individual voices and interests. This decision 
puts the special interests of big oil, banks and insurance companies 
ahead of the interests of the American people, and it risks corrupting 
our political process. It shows no deference to Congress and no respect 
for the rule of law as reflected in

[[Page S275]]

the precedents of the Supreme Court. I agree with Justice Stevens, who 
wrote in his extraordinary dissent in Citizens United:

       [T]he court's ruling threatens to undermine the integrity 
     of elected institutions across the nation. The path it has 
     taken to reach its outcome will, I fear, do damage to this 
     institution.

  At his confirmation hearing, Justice Alito, under oath, testified 
that the role of the Supreme Court is a limited role. It has to do what 
it is supposed to do vigilantly but also has to be equally vigilant 
about not stepping over the bounds and invading the authority of 
Congress. That was then when he was seeking confirmation. This is now. 
As Justice Stevens' dissent makes clear, the narrow majority of the 
Justices, including Justice Alito, substituted their own preferences 
for those of the duly-elected Congress, despite 100 years of the 
Supreme Court's own precedents.
  This is the most partisan decision since Bush v. Gore. That decision 
by the activist conservative bloc on the Supreme Court intervened in a 
presidential election. This decision is broader and more damaging in 
that they have now decided to intervene in all elections. Just as in 
Bush v. Gore, last week, the conservative activists currently on the 
Supreme Court unnecessarily went beyond the proper judicial role to 
substitute their preferences for the law. Last week's decision is only 
the latest example--yet perhaps the most extreme--of the willingness of 
a narrow majority of the Supreme Court to render decisions from the 
bench to suit their own ideological agenda.
  I believe that the activist conservatives now on the Supreme Court 
got this decision dramatically wrong as a matter of constitutional 
interpretation and also common sense. Corporations are not the same as 
individual American men and women. They do not have the same rights, 
the same morals, the same ideals. They do not vote. They do not have 
the same role in our election as individual citizens. When the Supreme 
Court made its landmark decision to ensure election fairness through 
the constitutional protection of the principle of one-person-one-vote, 
it did the right thing. Last week, the conservative bloc undermined 
that core constitutional principle by imposing its view that moneyed 
corporations should dominate the airwaves and election discourse. 
Rather than abiding by the limitations that Congress has developed to 
ensure a multitude of voices in the marketplace of election contests, 
they decided that the biggest corporations should be unleashed so that 
they can be the loudest and most dominant at the expense of our 
democratic principles.

  At the core of the first amendment is the right of individual 
Americans--individual men and women--to participate in the political 
process, to speak and, crucially, to be heard. That is what the 
campaign finance laws were designed to ensure; that American men and 
women could be heard and fairly participate in elections. This right is 
fundamental to the legitimacy of our democracy--to our ability to 
govern ourselves because it is the foundation of our other rights.
  Last week's decision puts these inalienable rights at risk by 
ignoring not only the extensive findings of Congress in passing the law 
but also logic and reality. The loud megaphones that can be bought by 
corporate money can drown out the unamplified voices of individual 
Americans. This is true even in an age when the Internet has vastly 
expanded avenues for citizens to speak to each other. The campaign 
finance laws passed by Congress reflected clear reasons for treating 
individuals and their free speech rights differently from corporations 
and their money. We have done so for at least 100 years. We sought 
additional reforms after the corruption of Watergate, and again at the 
turn of this new century. Those reforms and reasonable regulation are 
now left in tatters.
  The purported principles of the conservative activists cannot be 
limited to section 441b of title 2 of the United States Code, as 
amended by section 203 of the McCain-Feingold Act. If corporations can 
use their wealth to make independent expenditures for electioneering 
because they are now suddenly being given, by five people on the 
Supreme Court, constitutional rights in elections, what can prevent 
them from contributing to individual campaigns? What principle allows 
us to bar foreign corporations--foreign corporations--from likewise 
engaging in campaign communications?
  The largest companies garner annual profits of hundreds of billions 
of dollars. They are doing this even during one of the greatest 
financial disasters in our Nation's history. If even a fraction of that 
money were directed toward political activity, those companies would 
have the financial power to dominate and determine this country's 
elections and the laws of this country. To put this in perspective, as 
Doug Kendall of the Constitutional Accountability Center pointed out 
after the decision, if Exxon-Mobil diverted only two percent of the $45 
billion in profits it generated in 2008, ``this one company could have 
outspent both presidential candidates and fundamentally changed the 
dynamic of the 2008 election.'' The same could be said for numerous 
other companies who will now be able to dwarf the contributions and 
voices of individual Americans.
  The risks of this new ruling extend even further. The conservative 
activist majority in Citizens United fails to make clear whether the 
new ``rights'' it has conferred are limited to American corporations or 
if they apply to foreign corporations. Can the Chinese or subsidiaries 
of Chinese corporations or Saudi oil companies now also spend unlimited 
amounts of money and come in and decide, in effect, American elections?
  Saudi Aramco is estimated to be worth $781 billion. Petro China's 
estimated net worth is $100 billion, with profits rivaling Exxon 
Mobil's, in the tens of billions each year. Likewise, Venezuelan oil 
takes in tens of billions a year. A German insurance company named 
Allianz is worth $2.5 trillion. Another insurance concern, ING Group, 
is valued around $2 trillion. HSBC Holdings is valued at almost $2.5 
trillion, with annual sales of almost $150 billion. Bank of American 
itself has sales of over $100 billion a year. Then there are the Wall 
Street firms and investment houses, which certainly will not support 
planned banking industry reforms.
  It is hard to envision this is what the Founders, who threw off the 
shackles of oppression, meant to enshrine in the Constitution when they 
wrote the First Amendment. It is also hard to understand how these 
conservative activists, who sound incessant alarm bells about the 
dangers of applying foreign law and recognizing rights for noncitizens 
in our courts, now cannot understand the threat of this encroachment on 
the very core of our democracy. The Citizens United decision is 
disconnected from the plain text and history of the Constitution, the 
careful policy choices of the elected branches, and the guidance of the 
Supreme Court's own legal precedents and the rule of law.
  I am also disappointed with the Justices, who as nominees before the 
Senate, when they were testifying under oath, proclaimed their belief 
in judicial modesty and judicial restraint, could then turn around and 
so brazenly ignore the proper judicial role and in so cavalier a manner 
overturn Supreme Court precedent and override the rule of law. In his 
dissent, Justice Stevens noted that ``there were principled, narrower 
paths that a Court that was serious about judicial restraint could have 
taken.'' In deciding an unnecessarily broad question--when the parties 
themselves advanced numerous, narrower grounds of decision--the 
``majority has transgressed yet another `cardinal' principle of the 
judicial process.''
  I cannot remember a time in my 36 years in the Senate when I have 
come to this floor to criticize even decisions I disagree with, but 
this one I am because it goes to the very core of our democracy, and it 
will allow major corporations, which should have laws written to 
control their effect on America, to instead control America. That is 
not the America I grew up in. It is not the America Vermonters believe 
in, where individuals have a right to speak but not mega corporations.
  How did the Court come to the opposite conclusion about the rights of 
corporations to spend unlimited money on elections from that enshrined 
in our laws and prior Supreme Court decisions? Did we amend the 
Constitution to somehow equate corporations to people? No, we did not. 
Nowhere does the Constitution even mention corporations. Did we modify 
the first

[[Page S276]]

amendment? No. The first amendment reads as it did 6 years ago--indeed, 
as it did 219 years ago, when the Bill of Rights was ratified, and the 
14th State in the Union--Vermont--ratified the Constitution.
  As Justice Stevens noted in his dissent:

       The only relevant thing that has changed since Austin and 
     McConnell is the composition of the court.

  Six years ago Justice Sandra Day O'Connor, who was part of the 
Supreme Court's majority upholding the limits on corporate spending in 
the McCain-Feingold Act, retired. The meaning of the Constitution 
should not change from one year to another due to the replacement of 
one Justice. As the dissenting Justices noted:

       [T]he final principle of judicial process that the majority 
     violates is the most transparent: stare decisis. . . . But if 
     this principle is to do any meaningful work in supporting the 
     rule of law, it must at least demand a significant 
     justification, beyond the preferences of five justices, for 
     overturning settled doctrine.

  As judicial nominees often testify, the rule of law depends on the 
stability provided by the consistent application and interpretation of 
the Constitution and the laws. So does the ability of Congress to act 
to pass laws. The Latin phrase that lawyers use to talk about the 
importance of respecting and following prior court rulings or precedent 
is ``stare decisis.''
  As Justice Stevens wrote in the dissent:

       Stare decisis protects not only personal rights involving 
     property or contract but also the ability of the elected 
     branches to shape their laws in an effective and coherent 
     fashion.

  That is why every Supreme Court nominee that I can recall who has 
appeared before the Judiciary Committee has been asked whether he or 
she is committed to following precedent. This is central to assuring us 
and the country that a Justice will be committed to the rule of law and 
understands the role of a judge. Courts should only depart from 
precedent with ample justification. As Justice Stevens wrote in 
dissent:

       No such justification exists in this case, and to the 
     contrary there are powerful prudential reasons to keep the 
     faith with our precedents.

  The same five Justices willing to overturn well-established precedent 
to create broad new rights for corporations in Citizens United had no 
trouble severely limiting free speech rights for individuals. In a 2007 
case, Morse v. Frederick, Chief Justice Roberts, joined by Justices 
Scalia, Alito, Thomas and Kennedy, held that the First Amendment did 
not protect an 18-year-old student from being suspended for holding up 
a banner across the street from a school during the 2002 Olympic Torch 
Relay. They held the principal could suspend that student, a legal 
adult, for displaying the banner, not on school grounds, but across the 
street from the school. All that was needed was for the school 
administrator to believe that the banner somehow promoted illegal drug 
use and was therefore against the school's policy. Perhaps if that 
student had incorporated, these five Justices would now find his First 
Amendment rights protected. These are the same Justices who recently 
reached out to ban the streaming of public trial proceedings on a 
matter of public interest, as well, on similarly flimsy grounds in 
order to impose their own preferences.
  It is also difficult to understand the lack of concern in Citizens 
United for the potential of massive corporate spending to distort 
elections in light of the Supreme Court's ruling issued only months ago 
in Caperton v. Massey. In that case, Justice Kennedy wrote that the 
possibility of bias due to campaign contributions in a state judicial 
election meant that the judge was wrong not to recuse himself from 
deciding a case involving a defendant who had spent $3 million 
supporting his election campaign to the bench. I agreed with that 
decision. There, Justice Kennedy wrote:

       We conclude that there is a serious risk of actual bias--
     based on objective and reasonable perceptions--when a person 
     with a personal stake in a particular case had a significant 
     and disproportionate influence in placing the judge on the 
     case by raising funds or directing the judge's election 
     campaign when the case was pending or imminent.

  What I do not understand is how these same standards and obvious 
logic were not applied to corporate spending in election campaigns.
  Last week's decision and its troubling inconsistency with the Court's 
other interpretations of the Constitution leaves with us serious 
questions about how to ensure that our elections are not corrupted by 
unchecked corporate spending. It also reinforces the profound concern I 
have had about the real-world consequences of the Supreme Court's 
recent decisions for hard-working Americans--real Americans--on issues 
such as equal pay for equal work; the power of Congress under the 14th 
and 15th amendment, to pass civil rights laws, such as the Voting 
Rights Act; and issues thought to be long settled, such as the meaning 
of Brown v. Board of Education. The newly constituted Supreme Court 
seems determined to accrue to itself the powers given by the 
Constitution to Congress and to rewrite long-established precedents, 
certainly acting contrary to what these same Justices said in their 
sworn testimony when they were being confirmed. The Judiciary Committee 
has explored these concerns in a series of recent hearings, and we will 
hold a hearing soon to examine the impact of the Citizens United 
decision. This case is just the latest example of why every seat on the 
highest court affects the lives of everyday Americans.
  I think every one of us, as Americans, must work to ensure that the 
system of checks and balances envisioned by the Founders is not cast 
aside by the whimsical preferences of five Justices overriding the 
rights of 300 million Americans. I look forward to working with 
President Obama and Senators from both sides of the aisle as we try to 
restore the ability of every American to be heard and effectively 
participate in free and fair elections.
  Again, I can only emphasize that I do not recall a time in my 36 
years coming here to speak about Supreme Court decisions I disagree 
with, even though there have been many. But this is so egregious that, 
as chairman of the Senate Judiciary Committee, I would feel I was 
neglecting my duties if I did not come and speak against it.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.
  Mr. LEAHY. I thank the Chair.
  (The remarks of Mr. Leahy pertaining to the introduction of S. 2960 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The ACTING PRESIDENT pro tempore. The Senator from Alabama.

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