[Congressional Record Volume 156, Number 20 (Tuesday, February 9, 2010)]
[Senate]
[Pages S531-S532]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CITIZENS UNITED v. FEDERAL ELECTION COMMISSION
Mr. LEAHY. Mr. President, this evening the Senate will proceed to a
vote on a well-qualified nominee for the seat vacated by Justice Alito
when he was confirmed to the Supreme Court. Two weeks ago, I came to
the floor to address one of the latest Supreme Court cases where
Justice Alito's vote was both decisive and divisive. The decision in
Citizens United v. Federal Election Commission was a 5 to 4, and it
illustrates how the change in just one justice on the Supreme Court can
have serious consequences for hardworking Americans and for our
democracy.
This controversial decision is receiving much attention for its
conservative activism, its lack of deference to the elected branches,
and its disregard for the rule of law. With the stroke of a pen, five
Justices overturned a century of law to permit corporations to
overwhelm and distort the democratic process. The five Justices in the
activist conservative bloc reached out to grant corporations rights
that were once reserved for individual Americans. This divisive
decision puts the special interests of big oil, banks and insurance
companies ahead of the interests of the American people.
I believe that corporations are not the same as individual Americans.
This is certainly true in the context of the rights and freedoms
enshrined in our Constitution. Corporations do not have the same
rights, the same morals, the same ideals. Corporations cannot vote in
our democracy. Corporations do not have the same motivations and
interests as individual Americans. This is common sense. Contrary to
the preferences of the five Justices who decided the Citizens United
case, corporations were not part of the ``People'' who sought to
establish a more perfect Union through the ratification of the
Constitution and the adoption of the Bill of Rights.
I have heard many Republican Senators praise the Citizens United
decision as a ringing endorsement for the free speech rights of
corporations. Of course, what they fail to mention is that this
decision does not just put the rights of corporations on equal footing
with individual Americans. The moneyed corporations that can now
dominate the airwaves and election discourse will prevent a multitude
of individual voices from being heard. The biggest corporations can be
the loudest and most dominant. What the Republican supporters of the
Citizens United decision do not say is that these new rights for
corporations come at the expense of our democratic principles by
allowing corporate funded megaphones that will drown out the
unamplified voices of hardworking Americans.
Two weeks ago, Justice Alito shook his head when President Obama
warned Americans about the risks of money from foreign corporations
flowing into our elections. But the conservative majority in Citizens
United did not limit the new ``speech rights'' it granted corporations
to purely American corporations. The corporation before the court in
Citizens United appears to be domestic, leading some to argue that the
precise holding of the case does not apply to foreign corporations.
However, the legal rationale articulated by the slim majority will no
doubt apply beyond non-profit corporations like Citizens United. For
example, many observers have concluded that the decision will apply to
labor unions as well, even though no union was before the court in this
case. The ambiguity about how this decision could apply to corporations
with investors who are not American citizens, or directors who are not
American citizens, to subsidiaries of foreign corporations and to
multinational corporations threatens to introduce unprecedented foreign
influence into our elections.
The court's ruling exacerbates the already existing loophole allowing
campaign contributions from American subsidiaries of foreign
corporations. Today, an American subsidiary of a multinational
corporation is treated as an American corporation under the campaign
finance laws. With the newly-expanded ability of corporations to make
unlimited independent political expenditures, that right is conferred
on U.S. subsidiaries of multinational corporations as well.
How will the Federal Elections Commission be able to police whether
the actual source of a campaign contribution comes solely from the
domestic entity, and not its foreign affiliations? When a multinational
corporation funds a political advertisement, is the FEC expected to
audit the foreign and domestic sides of the corporation, to ensure that
the source of the contribution came purely from the U.S. subsidiary?
How can the FEC ensure that American subsidiaries of foreign
corporations do not become a front for foreign interests who want to
influence American elections?
The American people do not want the domestic subsidiaries of foreign
corporations to be able to drown out their voices during the upcoming
campaign season. Saudi Aramco is estimated to be worth $781 billion
dollars. 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. The German
insurance company, Allianz, is worth $2.5 trillion; ING Group is valued
at $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. The temptation for these powerful
corporations to begin exploiting the Citizens United decision will be
great. Imagine the influence that a small percentage of these profits
could buy to sway elections of legislators considering climate change
restrictions or reform of the financial services industry.
I fear that the Supreme Court's decision here has invited foreign
influence over our political process. Given the vague legal reasoning
and disregard for legal precedent that the majority employed to expand
corporate power in this case, it is now even uncertain whether those
existing restrictions to prevent wholly foreign corporations from
contributing directly to the political process can withstand a
constitutional challenge.
[[Page S532]]
The effect of the Court's decision also poses a serious threat to the
ability of state and local governments to police their own elections.
Twenty-four states currently have laws to restrain corporate spending
on elections. All of those laws are now called into question in the
wake of the Citizens United decision.
At a Senate Rules Committee hearing last week, Montana Attorney
General Steve Bullock gave compelling testimony about the threat to
Montana's century-old law prohibiting corporations from ``paying or
contributing in order to aid, promote or prevent the nomination or
election of any person.'' That law was designed to ensure that
``Corporations are represented in Montana campaigns, but on equal terms
alongside other political committees, all of them speaking through
purely voluntary associations of their money, ideas, and voices.''
Montana's law, like many state and Federal campaign finance laws, is
not new. It stemmed from what Attorney General Bullock described as
``the infamous bribery of the Montana Legislature by Senator William A.
Clark, which led to its refusal to seat him.'' In 1912, when Montana
enacted its law, the ``Copper Kings'' dominated not only elections but
all political debate in Montana and so the fed-up citizens of that
state responded.
Now, the challenges to state campaign spending laws that are sure to
follow Citizens United pose a grave threat to the will of Montana's
people, as well as citizens in the 23 other states with laws on the
books limiting corporate spending on elections. Attorney General
Bullock testified that its elections for state senate cost an average
of $17,000. That is an insignificant expense to a large corporation
subject to governmental oversight or regulation.
Like Montana, Vermont is a small state. It is easy to imagine large
corporations flooding the airwaves with election ads and drowning out
the voices of Vermont's citizens. I know that the people of Vermont,
like other Americans, take seriously their responsibility as citizens
to choose wisely when making choices on Election Day. Vermonters
cherish their critical role in the democratic process and are staunch
believers in the First Amendment, refusing to ratify the Constitution
until the adoption of the Bill of Rights in 1791. The rights of
Vermonters and all Americans to speak to each other and to be heard
should not be undercut by corporate spending. I fear that is exactly
what will happen unless both sides of the aisle join with President
Obama to try to restore the ability of every American to be heard and
effectively participate in free and fair elections.
In this connection, I urge Republicans to heed the advice of our
former colleague from New Hampshire, Senator Warren Rudman. He recalls
the time when Republicans were in favor of campaign finance reform,
before they flip-flopped on that issue as they have so many now that
the American people have elected a Democratic President. I ask that his
column from the February 5 Washington Post be included in the record at
the conclusion of my remarks.
It is difficult to understand the Justices' lack of concern in
Citizens United for the potential of massive corporate spending to
distort elections, especially 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.
The campaign finance laws passed by Congress, as well as the 24
states that have enacted restrictions, reflect a clear reason for
treating individuals and their free speech rights differently from
corporations--especially foreign corporations--and their money. These
laws were well-founded on principles dating back not just a century to
the Tillman laws, but to the distinction dating back to the time of our
Nation's founding.
As early as 1819, the great Chief Justice John Marshall acknowledged
that ``A corporation is an artificial being . . . the mere creature of
law, it possesses only those properties which the charter of its
creation confers upon it. . . .'' That 191-year-old precedent is one of
the many betrayed by the five Justice majority in Citizens United when
it ignored the nature of corporations as artificial, legally-created
constructions and wrongly described them merely as indistinguishable
from other ``associations of citizens.'' Corporations are created by
governments and given special rights and privileges. They are not
people. Describing them as indistinguishable ignores not only the long
development of the law but logic and reality.
The threat posed by the Citizens United goes well beyond the specific
limitations on corporate spending that were struck down in its
decision. The same lawyers who initiated the Citizens United case are
already seeking to overturn other limits on election spending and
transparency in campaign fundraising. If those lawyers are successful
in a case called SpeechNow.org v. Federal Election Commission--a case
currently before the United States Court of Appeals for the D.C.
Circuit, a court like the Supreme Court controlled by Republican-
appointed conservative activists--it could gut laws meant to ensure
that the public knows who funds political ads. That means unaccountable
groups would be free to distort elections with anonymous attack ads,
unanswerable to the American people.
I fear that we have not seen the last of the efforts of the newly-
constituted Supreme Court to knock down long-established precedents.
The Citizens United decision may have a dramatic impact on American
democracy, but it is only the latest in a growing set of examples of
why every seat on the highest court affects the lives of all Americans.
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