[Congressional Record Volume 156, Number 13 (Friday, January 29, 2010)]
[Senate]
[Pages S354-S356]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        CITIZENS UNITED DECISION

  Mr. WHITEHOUSE. Mr. President, I rise this morning to join Chairman 
Leahy's eloquent and inspiring remarks of yesterday and express my 
strong disagreement with the Supreme Court's decision released last 
week in Citizens United v. the Federal Election Commission.
  In this astonishing decision, the slimmest of 5-to-4 majorities 
overturned legal principles that have been in place since Theodore 
Roosevelt's administration. The five Justices who make up the Court's 
conservative bloc opened floodgates that had for over a century kept 
unlimited spending by corporations from drowning out the voices of the 
American people. It would be hard to call this decision anything other 
than judicial activism.
  Let me start by reminding my colleagues of the long history of 
successful and appropriate regulation of corporate influence on 
elections. Federal laws restricting corporate spending on campaigns 
have a long pedigree. The 1907 Tillman Act restricted corporate 
spending on campaigns. Various loopholes have come and gone since, but 
the principle embodied in that law more than 100 years ago--that 
inanimate business corporations are not free to spend unlimited dollars 
to influence our campaigns for office--was an established cornerstone 
of our political system. Monied interests have long desired to wield 
special influence, but the integrity of our political system always has 
had champions--from Teddy Roosevelt a century ago to Senators McCain 
and Feingold in our time, who won a bruising legislative battle with 
their 2002 bipartisan Campaign Finance Reform Act.
  Last week, that activist element of the Supreme Court struck down key 
protections of our elections integrity, overturned the will of Congress 
and the American people, and allowed all corporations to spend without 
limit in order to elect and defeat candidates and influence policy to 
meet their political ends. The consequences may well be nightmarish. As 
our colleague, Senator Schumer said, one thing is clear: The 
conservative bloc of the Supreme Court has predetermined the outcome of 
the next election; the winners will be the corporations.
  As my home State paper, the Providence Journal, explained:

       The ruling will mean that, more than ever, big-spending 
     economic interests will determine who gets elected. More 
     money will especially pour into relentless attack campaigns. 
     Free speech for most individuals will suffer because their 
     voices will count for even less than they do now. They will 
     simply be drowned out by the big money. The bulk of the cash 
     will come from corporations, which have much more money 
     available to spend than unions. Candidates will be even more 
     unlikely to take on big interests than they are now.

  What could make a big interest more happy than that? The details of 
this case were quite simple. Citizens United is an advocacy 
organization that accepts corporate funding. It sought to broadcast on 
on-demand cable a lengthy negative documentary attacking our former 
colleague, now-Secretary of State Clinton, who was then a candidate for 
President. The law prohibited the broadcast of this kind of corporate-
funded electioneering on the eve of an election. Citizens United filed 
suit, arguing that this prohibition violated the first amendment. The 
conservative Justices agreed, holding that all corporations have a 
constitutional right to use their general treasury funds, their 
shareholder funds, to pay for advertisements for or against candidates 
in elections.
  Although the decision was cast as being about the rights of 
individuals to hear more corporate speech, its effect will be with 
corporations--big oil, pharmaceutical companies, debt collection 
agencies, health insurance companies, credit card companies and banks, 
tobacco companies--now all moving without restriction into the American 
election process.
  To highlight the radical nature of this decision, let me put this in 
the context of true principles of judicial conservatism. Justice 
Stevens explained in his dissent that the principle of stare decisis--
``it stands decided''--assures that our Nation's ``bedrock principles 
are founded in the law rather than in the proclivities of 
individuals.''
  It is jarring that the unrestrained activism of the conservative bloc 
on the Supreme Court led them to pay so little heed to longstanding 
judicial precedents, brushing them aside with almost no hesitation. 
Justice Stevens noted that ``the only relevant thing that has changed 
[since those prior precedents] . . . is the composition of this 
Court.''
  Is it truly just a coincidence that this same bloc of Judges just 
last year invented a new individual constitutional right to bear arms 
that no previous Supreme Court had noticed for more than 200 years or 
is something else going on here where core Republican political goals 
are involved? Is stare decisis now out the window, at least with the 
Republican activist judges?
  Another supposed conservative principle thrown aside by these 
activists was the approach to constitutional interpretation that 
focuses on the original intent of the Founders. Read the opinions. By 
far, the most convincing discussion of that original intent appears in 
Justice Stevens' dissent, not in the majority opinion or in Justice 
Scalia's concurrence. Justice Stevens, in dissent, correctly explains 
that the Founding Fathers had a dim view of corporations. They were 
suspicious of them. They considered them prone to abuse and scandal, 
and that those corporations that did exist at the time of the founding 
were largely creatures of the State that did not resemble contemporary 
corporations. Justice Stevens rightly describes it as:

       . . . implausible that the Framers believed ``the freedom 
     of speech'' would extend equally to all corporate speakers, 
     much less that it would preclude legislatures from taking 
     limited measures to guard against corporate capture of 
     elections.

  This lack of historical awareness is, as I will explain, not the only 
flaw of the majority opinion. Only the dissent points out the most 
basic point:

       . . . that corporations are different from human beings . . 
     . corporations have no consciences, no beliefs, no feelings, 
     no thoughts, no desires.

  I would add they have no souls. The dissent explains:

       Corporations help structure and facilitate the activities 
     of human beings, to be sure, and their ``personhood'' often 
     serves as a useful legal fiction. But they are not themselves 
     members of ``We the People'' by whom and for whom our 
     Constitution was established.

  The majority just bypasses this elemental point.

[[Page S355]]

  One bedrock principle in our democracy is that the will of the people 
should be supreme except in very limited circumstances. In the judicial 
context this means that courts should hesitate before striking down 
statutes enacted by Congress. But it seems that is not so when core 
tenets of the Republican platform are involved.
  It is not just this one case. There is a pattern that is discernible 
when these five men get together to strike down laws of Congress they 
do not like and make new law more to their liking. The pattern is not 
just discernible, it is unmistakable. It is undeniable. It appears, 
indeed, to be without exception.
  Look at the evidence: There is virtually perfect concordance between 
the major departures by the activist bloc from conservative judicial 
tenets--such as judicial restraint, original intent, States rights--and 
the result in those cases of achieving current Republican political 
goals. One could probably call this practice ``situational judicial 
restraint.'' A rational person could conclude, based on the evidence of 
the Court's behavior, the observable results that this and other 
decisions by the five-man conservative bloc would more properly be 
characterized as political prize-taking than judicial lawmaking.
  The only unchecked power in the American political system is that of 
a majority of a court of final appeal. When a small group can seize 
majority power in a court of final appeal, they answer to no one and 
can rule as they please. That danger is why courts are ordinarily so 
careful to answer to rules of judicial practice, respect for precedent, 
answering the narrowest question, and engaging in honorable, neutral, 
and logical analysis to arrive at decisions. That is why this 
conservative majority's departure from these rules of judicial practice 
and the association between these departures and outcomes favorable to 
their political party is so unpleasant.
  The steady march of the activist rightwing bloc to establish its 
conservative political priorities as the law of the land should come to 
observers as no surprise. It represents the fruit of a longstanding and 
often very public effort to turn the law and the Constitution over to 
special interest groups and conservative activists. Conservative 
institutions, such as the Federalist Society, were created to groom and 
vet the ideological purity of foot soldiers in the conservative 
movement. Consider legal historian Steven Teles on the role of the 
Federalist Society in the Reagan administration:

       Society membership was a valuable signal for an 
     administration eager to hire true-believers for bureaucratic 
     hand-to-hand combat. In addition, by hiring this Society's 
     entire founding cadre, the Reagan administration and its 
     judicial appointees sent a very powerful message that the 
     terms of advancement associated with political ambition were 
     being set on their head: clear ideological positioning, not 
     cautiousness, was now an affirmative qualification for 
     appointed office.

  The results of this meld of political ambition, ideological 
positioning, and judicial appointees have been terrible. Fringe 
conservative ideas, such as hostility to our Nation's civil rights, 
environmental protection, and consumer protection laws, have been 
steadily dripped into the legal mainstream by endless repetition in a 
rightwing echo chamber. The mainstream of American law has been shifted 
steadily to the right by force of this effort, backed by seemingly 
endless corporate funds. This ``rights movement'' for corporations, for 
the rich, the powerful, and the fortunate, has been pursued in a 
manner--deliberate infiltration of the judicial branch of government--
that should concern anybody who respects the law and, in particular, 
respects our Supreme Court.
  The Republican effort to capture that institution for those interests 
has been a remarkably aggressive and surprisingly explicit effort. 
Usually, political efforts to capture great public institutions come, 
as it were, in sheep's clothing. But this wolf came as a wolf. Consider 
for example the official Republican Party platform of 2000, which 
``applauded Governor Bush's pledge to name only judges who have 
demonstrated that they share his conservative beliefs and respect the 
Constitution.'' All that was left out was that they should be willing 
to bend the law and overturn precedents to impose those beliefs.
  The pattern is not complicated. America's big corporate interests 
fund Republican candidates for office, and those corporate interests 
want those Republicans to help them. That is as old as politics. 
Republicans, once elected, make it a priority to appoint judges who 
want to help them--judges who may give obligatory lip service opposing 
judicial activism but will actually deliver on core Republican 
political interests; the conservative bloc of judges overrules 
precedent and 100 years of practice to open the doors to unlimited 
corporate political spending; and corporations can now give ever more 
money into the process of electing more Republicans. Connect the dots: 
The Republicans are the party of the corporations; the judges are the 
appointees of the Republicans; and the judges just delivered for the 
corporations. It is being done in plain view.

  The Washington Post recently explained:

       ``The U.S. Chamber of Commerce is now free to spend 
     unlimited amounts of money on advertisements explicitly 
     attacking candidates.''

  The Chamber of Commerce already had announced in November ``a massive 
effort to support pro-business candidates.'' So the response from the 
Republicans, as reported by the Washington Post, should come as no 
surprise:

       Republican leaders cheered the ruling as a victory for free 
     speech and predicted a surge in corporate support for GOP 
     candidates in November's midterm election.

  Now that the Court has taken the fateful step of forbidding any 
limits on corporation spending to limit campaigns, we can expect to see 
corporate polluters under investigation by the Department of Justice 
running unlimited ads for a more sympathetic Presidential candidate; 
financial services companies spending their vast wealth to defeat 
Members of Congress who are tired of the way business is done on Wall 
Street; and defense contractors overwhelming candidates who might dare 
question a weapons program that they build.
  The Court was so eager to give artificial corporations the same 
rights as natural living human beings that it virtually overlooked 
foreign corporations. The activist Republican majority leaves wide open 
the possibility of constitutionally protected rights to influence 
American elections being held by a Saudi oil company interested in 
American energy policy, a Third World clothing manufacturer opposed to 
American labor standards, or a foreign farm conglomerate concerned 
about America's food safety rules. Is the five-man conservative bloc's 
fealty to corporate power so absolute that they could not bring 
themselves to say that the first amendment doesn't protect foreign 
companies wishing to drown out the voices of American citizens?
  Our government is of the people, by the people, and for the people. 
By refusing to distinguish between people and corporations, the 
Citizens United opinion undermines the integrity of our democracy, 
allowing unlimited corporate money to drown out ordinary citizens' 
voices. So look out for government of the CEOs, by the CEOs, and for 
the CEOs, who now have special privileged status: Not only may CEOs use 
their personal wealth to influence elections, they now get the added 
megaphone--not available to regular citizens--of being able to direct 
unlimited corporate funds to influence elections. CEOs now have twice 
the voice or more of everyday Americans.
  I won't belabor the record here, because it is something of a 
technical matter, but before I conclude I have to say from the point of 
view of judicial practice, the majority opinion is disturbing in 
several ways: First, it uses rhetorical devices that are more 
consistent with polemic than judicial determination--vastly overstating 
the opponents' arguments, using false analysis, knocking over a straw 
man, indulging in selective quotation and unsupported fact finding.
  One example: This is what the conservative bloc found as a fact. And 
remember, fact finding is not the proper province of an appellate court 
in the first place, but here is what they found regarding elections:

       We now conclude that independent expenditures, including 
     those made by corporations, do not give rise to corruption or 
     the appearance of corruption.

  They just decreed that. So a company comes in, drops a couple of a 
million dollars in a smear campaign

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against an opponent at the bitter end of a race, when it can't be 
answered, and the next thing you know the person they defended against 
the opponent is in their pocket. No appearance of corruption? Well, the 
Supreme Court has decided it: No appearance of corruption. That is 
clear to them.
  Here is another finding of fact by this bloc of judges:

       The appearance of influence or access, furthermore, will 
     not cause the electorate to lose faith in our democracy.

  They made that up out of whole cloth. There are hundreds of thousands 
of pages of findings to the contrary in the record of previous Supreme 
Court decisions they overruled. But, no, they made these unsupported 
findings.
  It is novel, it is naive, and it contrasts with the actual findings 
of this Senate 100 years ago, which said the following:

       The evils of the use of [corporate] money in connection 
     with political elections are so generally recognized that the 
     committee deems it unnecessary to make any argument in favor 
     of the general purpose of this measure. It is in the interest 
     of good government and calculated to promote purity in the 
     selection of public officials.

  The evils of the use of corporate money in connection with political 
elections was so generally recognized 100 years ago that the Senate 
committee working on that legislation deemed it unnecessary to make any 
argument in favor of the measure--it was too obvious. Yet now this 
appellate tribunal has made fact findings that that is all wrong.
  Moreover, a small band of conservative Justices departs from regular 
judicial practice by relying for precedent on its own members' previous 
concurring and dissenting opinions, as if they were their own little 
court, building a scaffold of arguments alongside the law, in wait for 
the right case with a sufficient majority to abandon the law and jump 
to their scaffold of argument. As Justice Stevens accurately pointed 
out, the majority opinion of the right wing bloc is essentially an 
``amalgamation of resuscitated dissents.''
  Finally, and most disturbingly, the Chief Justice evaluates precedent 
in terms of whether his five-member bloc objects to it. He is 
surprisingly outright about this. He said this: ``Stare decisis,'' the 
principle that a settled question is settled, that it stands decided--
``stare decisis effect is . . . diminished when the precedent's 
validity is so hotly contested that it cannot reliably function as a 
basis for decision in future cases.''
  He later continues: ``The simple fact that one of our decisions 
remains controversial . . . does undermine the precedent's ability to 
contribute to the stable and orderly development of the law.''
  As anybody looking at this can see, it is a completely self-
fulfilling theory, and it allows the five-man right wing bloc on the 
Court to gradually undermine settled precedent, to tunnel under it with 
quarreling objections, hotly contesting it, perhaps even to accelerate 
the process of undermining it; then, at some point, decree that the 
settled precedent is no longer valid because they have quarreled with 
it. Now it must fall.
  There can be little doubt that the conservative bloc is laying the 
foundation for future right wing activism in a seemingly deliberate and 
concerted effort to expand its political philosophy into our law. Of 
course, always the dramatic changes observably fall in the direction of 
the Republican Party's current political doctrine and interests.
  I will close by quoting Justice Stevens, who I think puts the 
fundamental issue of the Citizens United majority opinion in clear 
relief. ``At bottom,'' he says:

       . . . the court's opinion . . . is a rejection of the 
     common sense of the American people, who have recognized a 
     need to prevent corporations from undermining self-government 
     since the founding, and who have fought against the 
     distinctive corrupting potential of corporate electioneering 
     since the days of Theodore Roosevelt. It is a strange time to 
     repudiate that common sense. While American democracy is 
     imperfect--

  Justice Stevens concludes--

     few outside the majority of the Court would have thought that 
     its flaws included a dearth of corporate money in politics.

  I yield the floor.

                          ____________________