[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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