[Congressional Record Volume 156, Number 111 (Tuesday, July 27, 2010)]
[Senate]
[Pages S6278-S6285]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    DISCLOSE ACT--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the time until 3 
p.m. will be equally divided and controlled between the two leaders or 
their designees, with the majority leader controlling the final 15 
minutes prior to a vote on the motion to invoke cloture on the motion 
to proceed to S. 3628.
  Mr. LEAHY. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, I am going to proceed on my leader 
time.
  The PRESIDING OFFICER. The Senator can proceed.
  Mr. McCONNELL. Mr. President, 8 years ago, Congress passed and the 
President signed a bill known as the Bipartisan Campaign Reform Act or 
BCRA. This bill was the culmination of a long and protracted battle in 
which I played a major part, as many of my friends on both sides of the 
aisle will recall. It garnered bipartisan support and bipartisan 
opposition. Many hearings were held, studies were conducted, and a 
lengthy record on both sides of the issue was developed.
  I strongly opposed that bill. But I commend its authors for one 
thing: In drafting and passing BCRA, they made every effort to ensure 
that everybody had to play by the same rules--rules, moreover, that 
would not take effect in the middle of an election year. They wanted to 
make sure there was no appearance of giving one party a partisan 
advantage, and in that they succeeded.
  Fast forward to today. Late last week, Democratic leaders decided to 
take us off of the small business bill to move to the DISCLOSE Act, a 
bill that is the mirror opposite of BCRA in the partisan way it was 
drafted and in the partisan way it is being pushed ahead of an 
election.
  Let's be perfectly clear here. This bill is not what its supporters 
say it is. It is not an effort to promote transparency. It is not a 
response to the Supreme Court's ruling in Citizens United which has now 
been the law of the land for 7 months and which, contrary to the 
breathless warnings of some, has not caused the world to stop turning 
on its axis.
  This bill is a partisan effort, pure and simple, drafted behind 
closed doors by current and former Democratic campaign committee 
leaders, and it is aimed at one thing and one thing only. This bill is 
about protecting incumbent Democrats from criticism ahead of this 
November's election--a transparent attempt to rig the fall election.

[[Page S6279]]

  The supporters of this bill say it is about transparency. To that, I 
say it is transparent all right. It is a transparent effort, as I said, 
to rig the fall elections. They are so intent on their goal that they 
are willing to launch an all-out assault on the first amendment in 
order to get there. Democrats achieved something truly remarkable in 
drafting this bill. They united the ACLU and the Chamber of Commerce--
quite an accomplishment--both, of course, in opposition. Why would they 
oppose it? Because it is as obvious to these groups as it is to me that 
the DISCLOSE Act is a clear violation of the right to free speech--a 
clear violation.
  As usual with Democrats in this Congress, the process has not been 
any better than the substance. Over in the House, the Democratic 
campaign committee chairman sprung a rewrite of substantial portions 
that Republicans and even Democrats had not seen shortly before this 
bill was voted on. Not to be outdone, Democrats here in the Senate 
introduced a version last week that had been substantially rewritten 
since it was first introduced in April. In other words, the original 
Senate version was replaced under a veil of secrecy late last week, and 
that is the one the Democrats wish for us to proceed to today. A 
massive rewrite of the laws that govern elections, and Democrats want 
to give 6 days between introduction and a vote; a massive rewrite of 
the Nation's campaign finance laws without hearings, without testimony, 
without studies, and without a markup; another bill produced without a 
single hearing and placed directly on the calendar to bypass even the 
Rules Committee, which is supposed to have jurisdiction over this 
issue; a bill written behind closed doors with the help of lobbyists 
and special interests--all of this, all of this in the name of 
transparency. Forget the DISCLOSE Act. What we need is a ``Transparency 
in Legislating about Elections Act.''
  This approach to this bill could not be more different than BCRA. 
However much I disagreed with that bill, it treated all groups, 
corporations, unions, parties, and individuals the same. From the ban 
on party non-Federal dollars to advertisement limitations within 
proximity of an election, BCRA's restrictions and prohibitions were 
applied evenly. The DISCLOSE Act is the opposite: 117 pages of stealth 
negotiations in which Democrats pick winners and losers, either through 
outright prohibitions or restrictions so complex that they end up 
achieving the same result.
  The unions do not need a carve-out because they got exemptions. The 
new law applies to government contractors but not to their unions or 
unions with government contracts. Let me run that by you again. The 
unions do not need a carve-out because they got exemptions. The new law 
applies to government contractors, but not their unions or unions with 
government contracts. It does not apply to government unions. It 
applies to domestic subsidiaries but not to their unions or 
international unions. Through threshold and transfer exemptions, unions 
are the ultimate victors under this bill. I would note that numerous 
attempts were made to provide parity in the House Administration 
Committee markup. All were defeated on a partisan basis with no 
credible explanation. It is hard not to laugh in discussing this 
monstrosity we will be voting on shortly. And this is what they are 
calling transparency?
  In their efforts to pass this partisan bill ahead of the election, 
Democrats have been forced to do the same kind of horse trading we saw 
in the health care debate. Some of the deals they struck were aimed at 
attracting special interest support, while others were aimed at 
quelling special interest opposition. In the end, they came up with a 
bizarre carve-out construct that grants first amendment freedoms to the 
chosen ones, and the results are not any prettier than the health care 
bill.
  Follow this logic: The exemption applies to 501(c)(4)s, with 500,000 
members in all 50 States plus Puerto Rico and the District of Columbia, 
in existence for 10 years, who receive less than 15 percent of their 
money from corporations or labor unions. In case you do not know who 
this provision is aimed at, it is a carve-out for the NRA, as well as 
the AARP and the Humane Society, among unknown others who may be in 
this category, but not to groups such as AIPAC or groups formed to 
advocate for victims of the oilspill or Hurricane Katrina.
  So if you have 400,000 members, sit down and shut up. If you were 
founded in 2002, nice try, sit down. If you do not have the ability to 
recruit members in every State, zip it, shut your mouth. These are the 
contortions--the contortions--the authors of this bill had to go 
through to get it this far.
  Worse still, the DISCLOSE Act mandates that its provisions shall take 
effect without--again, it is hard to go through this bill without 
breaking into unrestrained laughter--it mandates that its provisions 
shall take effect without regard to whether the Federal Election 
Commission has promulgated regulations to carry out such amendments. 
This, of course, will have the practical effect of paralyzing those who 
want to participate in the political process. If they do not know what 
the rules are, they will take themselves out of the game, which is 
clearly what the authors of this bill had in mind.
  So let me ask a question. All of these new reporting obligations, 
filing requirements, certification mandates, and transfer burdens are 
to occur but how? How? Are there magic forms out there we do not know 
about? Do folks write e-mails to the FEC, the FCC, or the SEC? Maybe we 
bring back telegrams or use a Harry Potter owl or the Pony Express. 
Under threat of criminal sanctions, this provision is a clear message 
from the Justice Department to anyone covered by the new restrictions 
in this bill: Go ahead and speak. Make my day.
  Lastly, recognizing the important constitutional questions at issue 
with BCRA--and everybody on both sides of that debate knew there were 
important constitutional questions involved--an expedited judicial 
review provision was included in that bill and subsequently used. But 
not so in this one. In order to make sure this bill is not held up by 
something as inconvenient--as inconvenient--as a challenge on first 
amendment grounds, its authors have made sure no court action 
interferes with their new restrictions this election cycle, and maybe 
even the next one as well. They add multiple layers of review, no 
provision addressing an appeal to the Supreme Court whatsoever, no time 
limits for filing, and no congressional direction to the courts to 
expedite. Again, the goal of the proponents of this speech rights 
reduction act is abundantly clear: Slow the process and secure new 
rules that help incumbent Democrats for the upcoming elections and for 
the foreseeable future.

  The one goal here is to get people who would criticize them to stop 
talking about what Democrats have been doing here in Washington over 
the last year and a half, a need to shut those people up, a need to 
shut them up real fast here before the upcoming election.
  The authors of the bill labored behind closed doors to decide who 
would retain the right to speak--in direct defiance of what the Supreme 
Court made clear this past January, when Justice Kennedy, writing for 
the majority, said:

       [W]e find no basis--

  ``no basis''--

     for the proposition that, in the context of political speech, 
     the government may impose restrictions on certain disfavored 
     speakers.

  What could be more clear? ``[W]e find no basis for the proposition 
that, in the context of political speech, the government may impose 
restrictions on certain disfavored speakers.''
  Not exactly an ambiguous holding. But that is, of course, precisely--
precisely--what the DISCLOSE Act does. It imposes restrictions on 
speech. And I would note the one category of speakers upon whom the so-
called reformers have bestowed the greatest speech rights in this bill 
are, of course, the corporations that own media outlets. So a company 
that owns a TV network, a newspaper, or a blog can say what they want, 
when they want, as often as they want.
  BCRA was debated over the course of many years. Its authors also 
recognized the importance of not changing the rules on the eve of an 
election, which is why the legislation went into effect the day after 
the 2002 midterm elections. The DISCLOSE Act is the opposite. Seeking 
to achieve exactly what BCRA avoided, this legislation has an effective 
date of 30 days after enactment. If it were not already obvious that 
this bill is a totally partisan

[[Page S6280]]

exercise, the effective date should be proof positive.
  And those, Mr. President, are the facts.
  I must admit it has been a few years since I was in law school. So 
after I learned about all these special deals, I went back to the first 
amendment to look for an asterisk or something indicating that only 
large, entrenched, and wealthy special interests get the ``freedom of 
speech.'' I went and looked at the first amendment again to look for an 
asterisk or something indicating that only large, entrenched, and 
wealthy special interests get the ``freedom of speech.''
  I could not find it. So I pulled out this Analysis and Interpretation 
of the Constitution, thinking maybe it could be found there. I looked 
and looked, again, to no avail. Then it occurred to me, perhaps on that 
winter day in 1791, when the first amendment became effective, these 
rights were meant to apply to everyone--everyone. Perhaps it is true 
the first amendment was adopted to protect the people from the 
Congress, to protect them from laws such as this one, to protect them 
from a government that picks winners and losers, to protect them from 
an overreaching government that is supposed to derive its powers from 
the consent of the governed.

  This DISCLOSE Act is not about reform. It is nothing more than 
Democrats sitting behind closed doors with special interest lobbyists 
choosing which favored groups they want to speak in the 2010 elections, 
all in an attempt to protect themselves from criticism of their 
government takeovers, record deficits, and massive unpaid-for 
expansions of the Federal Government into the lives of the American 
people. In other words, this is a bill to shield themselves from 
average Americans exercising their first amendment rights of freedom of 
speech.
  Americans want us to focus on jobs, but by taking us off the small 
business bill and moving to this one, Democrats are proving the jobs 
they care about the most are their own. By moving off of the small 
business bill and moving on to this one, our Democratic friends are 
letting us know the jobs they care about the most are their own. Think 
about it. Here we are in the middle of the worst recession in memory, 
and Democratic leaders decided to pull us off a bill that is meant to 
create jobs in an effort to pass this election-year ploy to hold on to 
their own jobs. What could be more cynical than that? A ``yes'' vote on 
this bill will send a clear message to the American people that their 
jobs aren't as important as the jobs of embattled Democratic 
politicians.
  In closing, let me just note that hundreds of ideologically diverse 
organizations oppose this bill and have provided us with valuable 
information on its various absurdities. But I think the ultimate test 
of this bill's legitimacy is pretty simple. If the Founding Fathers 
were here, they would remind us. They would hold up the Constitution 
and remind us of the oath we took to support and defend it.
  As Members cast this vote today, they will come to the well and look 
at the desk to see what the well description says--the sheet of paper 
that sums up what this vote is about. On the Democratic side, I am sure 
it will include words such as ``transparency'' and ``disclosure'' and 
talk about the threats to democracy if the bill isn't passed. On our 
side, it will be simpler. The copy of the Constitution will serve as 
our well description, and, more importantly, it will remind us of why 
we are all here. We are here to protect the Constitution, not our own 
hides.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, the majority has 15 minutes, and I yield to 
Senator Schumer whatever time he may use. I would also alert Members 
that the vote may be more than 15 minutes from now because I may have 
to use some of my leader time.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I thank the leader for yielding.
  First, all votes cast in this body are important, but it is rare that 
a single vote can so unmistakably reveal whose side you are on. Make no 
mistake about it, with today's vote, we are picking sides, and no 
amount of words, no amount of sophistry in terms of explanations of 
calling black white and white black can change that around.
  At a time when the public's fears about influence of special 
interests are already high, this decision by the Court stacks the deck 
even more against the average American. And my good friend from 
Kentucky is defending the average American? The average American who 
sets up a 501(c)(4) and spends tens of millions of dollars to get his 
views made known or the average American who puts out 3,400 ads, 
without his or her name on them, to vilify a candidate for reasons 
unstated? That is not the average American. We know that. It is very 
clear who is defending the average American: those of us who support 
the DISCLOSE Act.
  My friend from Kentucky is worried about transparency in this body 
all of a sudden but doesn't speak for a bill that brings transparency 
to our politics. No one can argue that this bill brings less 
transparency. No one can argue that.
  We know what is going on here. There are visions--visions in people's 
heads of Karl Rove spending $50 million, funded by people we don't 
know, to attack candidates for reasons we are not sure of, and never 
putting their name to it.
  If you believe in transparency, you believe in the DISCLOSE Act. If 
you believe in transparency, you believe that someone who has the 
ability through their wealth, whether they be a corporation or an 
individual or a candidate, should put their name on the ad they are 
putting forward over and over and over again. Transparency? This bill 
stands for transparency.
  I would challenge any of my Republican colleagues to come forward 
with a bill that pierces through the veil of secrecy the Supreme Court 
decision allows. As for that great Constitution which we revere, eight 
of the nine Justices said disclosure was certainly constitutional, and 
they even went out of their way to say it is the right thing to do. We 
know why the other side doesn't want to do it. They are talking about 
Democrats not wanting to be attacked. No one wants to be attacked. All 
we are saying is, if you are going to attack us, put your name on the 
ad. And the other side is resisting that. We know why. Because with 
some of the ads that are run--by everybody--if you don't have to put 
your name on them, there is less of a reason to stick to the truth and 
stick to the facts. That is why for years we have put this burden on 
ourselves. We said that we as candidates have to stand by our ad. Why 
shouldn't big corporations have to stand by their ad? I would like 
anyone on the other side to answer that question.
  This is all about secrecy, not free speech. No one is saying they 
can't run ads. The Constitution now allows it, even out of corporate 
treasuries, but the Constitution allows and smiles upon greater free 
speech disclosure.
  So you can talk all about the process: ``I was surprised we are going 
off the jobs bill.'' For how many months and weeks and hours through 
procedural delays has the other side kept us from going to various jobs 
bills? All of a sudden, when it comes time to lift the veil of secrecy 
on these ads, all of a sudden they say: Let's get back to a jobs bill. 
Oh, no. This fight will continue.
  I spoke to some of my colleagues on the other side of the aisle. They 
were very sincere. Many of them, a good number, said to me: We should 
have disclosure, but the pressure is too great because this act would 
undo much of the electoral advantage that Citizens United--just due to 
the way our politics works now--would bring to the other side of the 
aisle. One of them said to me: It is skins and shirts. No one can 
deviate from the party line. So the opposition to this act is defending 
the Constitution when the Constitution upholds and supports disclosure; 
is defending the average guy when the average guy or gal has no 
opportunity to run these ads; is defending fairness and equality when 
it is only a limited, privileged few who will have the ability to put 
these ads on over and over and over again. That is not playing straight 
and not playing fair with the American people.
  We have made this bill a fair bill that treats all sides equally. 
Some say: Well, there is a $600 limitation. Of course, but that has 
nothing to do with unions or corporations. If you spend

[[Page S6281]]

$600 or less--we have always said low amounts of money don't have to be 
disclosed. If you spend $600,000, it should have to be disclosed, 
whether you are a corporation or a union, either way. Oh, no.
  My colleagues, this is a sad day for our democracy. Not only does the 
Supreme Court give those special interests a huge advantage, but this 
body says they should do it all in secret without any disclosure. That 
transcends this election, transcends Democrat or Republican. It eats at 
the very fabric of our democracy. It makes our people feel powerless 
and angry, and the greatness of that Constitution and the greatness of 
the American people is eroded by decisions like that of the Supreme 
Court and the decision, unfortunately, we will make today in not 
letting the DISCLOSE Act come to the floor for debate.
  Mr. McCAIN. Mr. President, I will oppose cloture on the motion to 
proceed to S. 3628, the DISCLOSE Act. My reasons for opposing this 
motion are very simple--this is clearly a partisan attempt by the 
majority to gain an advantage in the upcoming election. There was no 
hearing held in the Rules Committee on this bill and no Republican 
members were given the opportunity to consider the bill and offer 
amendments in a committee markup.
  Additionally, this bill is stuffed with onerous new government 
regulations and is loaded with loopholes and carve-outs for special 
interests. The authors of this bill insist that it is fair and is not 
designed to benefit one party over the other. That is simply not the 
case. One example of this is the ban on campaign-related activities by 
Federal Government contractors. If this legislation were enacted--tens 
of thousands of American businesses--large and small would be 
prohibited from engaging in campaigns while labor unions--which receive 
Federal grants and routinely negotiate collective bargaining agreements 
with the Federal Government--would be free to operate as they see fit. 
It is a simple matter of fairness, and this bill as drafted is patently 
unfair.
  As my colleagues know, I have been involved in the issue of campaign 
finance reform for most of my career, and I am fully supportive of 
measures which call for full and complete disclosure of all spending in 
Federal campaigns.
  When my colleague from Wisconsin, Senator Feingold, and I set out to 
eliminate the corrupting influence of soft money and to reform how our 
campaigns are paid for--we vowed to be truly bipartisan and to do 
nothing which would give one party a political advantage over the 
other. As my colleague from Arizona noted earlier--the new rules 
created under our legislation applied equally to everyone, and they 
only applied after the subsequent election. That is not the case with 
this piece of legislation. The provisions of this bill would become 
effective 30 days after being signed by the President. This bill is 
clearly designed to silence American businesses while allowing labor 
unions to speak and spend freely in the elections this November.
  I encourage my colleagues to oppose cloture on the motion to proceed 
to this bill, and I urge my friends in the majority to go back to the 
drawing board and bring back a bill that is truly fair, truly 
bipartisan, and requires true full disclosure.
  Mr. FEINGOLD. Mr. President, I strongly support the DISCLOSE Act and 
I believe the Senate should be allowed to consider it. I am pleased to 
see this bill get such strong support from my colleagues on the 
Democratic side, and I urge my Republican colleagues to think long and 
hard before blocking it even from coming to the floor. I have a long 
history of bipartisan work on campaign finance issues. I am not 
interested in campaign finance legislation that has a partisan effect. 
This bill is fair and evenhanded. It deserves the support of Senators 
from both parties.
  As the name suggests, the central goal of this bill is disclosure. It 
aims to make sure that when faced with a barrage of election-related 
advertising funded by corporations, which the Supreme Court's decision 
in the Citizens United case has made possible, the American people have 
the information they need to understand who is really behind those ads. 
That information is essential to being able to thoughtfully exercise 
the most important right in a democracy--the right to vote.
  It is no secret that Senator Schumer and I, and all of the original 
cosponsors of the bill, were deeply disappointed by the Citizens United 
decision. We don't agree with the Court's theory that the first 
amendment rights of corporations, which can't vote or hold elected 
office, are equivalent to those of citizens. And we believe that the 
decision will harm our democracy. I, for one, very much hope that the 
Supreme Court will one day realize the mistake it made and overturn it.
  But the Supreme Court made the decision and we in the Senate, along 
with the country, have to live with it. The intent of the DISCLOSE Act 
is not to try to overturn that decision or challenge it. It is to 
address the consequences of the decision within the confines of the 
Court's holdings. Congress has a responsibility to survey the wreckage 
left or threatened by the Supreme Court's ruling and do whatever it can 
constitutionally to repair that damage or try to prevent it.
  In Citizens United, the Court ruled that corporations could not 
constitutionally be prohibited from engaging in campaign related 
speech. But, with only one dissenting Justice, the Court also 
specifically upheld applying disclosure requirements to corporations. 
The Court stated:

       [P]rompt disclosure of expenditures can provide 
     shareholders and citizens with the information needed to hold 
     corporations and elected officials accountable for their 
     positions and supporters. Shareholders can determine whether 
     their corporation's political speech advances the 
     corporation's interest in making profits, and citizens can 
     see whether elected officials are ``in the pocket'' of so-
     called moneyed interests.

  The Court also explained that disclosure is very much consistent with 
free speech:

       The First Amendment protects political speech; and 
     disclosure permits citizens and shareholders to react to the 
     speech of corporate entities in a proper way. This 
     transparency enables the electorate to make informed 
     decisions and give proper weight to different speakers and 
     messages.

  The Court also made clear that corporate advertisers can be required 
to include disclaimers to identify themselves in their ads. It 
specifically reaffirmed the part of the McConnell v. FEC decision that 
held that such requirements are constitutional.
  The DISCLOSE Act simply builds on disclosure and disclaimer 
requirements that are already in the law and that the Court has said do 
not violate the first amendment. For years, opponents of campaign 
finance reform have argued that all that is needed is disclosure. Well, 
in a very short time we will find out whether they were serious, 
because that is what this bill is all about.
  If the Senate is allowed to proceed to the bill, there will be time 
to discuss its provisions in more detail, but let me comment on one 
provision that has caused controversy, which was added in the House--
the exception for large, longstanding groups, including the National 
Rifle Association.
  I am not a fan of exceptions to legislation of this kind. I would 
prefer a bill, like the one we introduced, that does not contain this 
exception. But the fact is that the kinds of groups that are covered by 
the exception are not the kinds of groups that this bill is mostly 
aimed at. Knowing the identity of individual large donors to the NRA 
when it runs its ads is not providing much useful information to the 
public. Everyone knows who the NRA is and what it stands for. You may 
like or dislike this group's message, but you don't need to know who 
its donors are to evaluate that message.
  The same cannot be said about new organizations that are forming as 
we speak to collect corporate donations and run attack ads against 
candidates. One example is a new group called American Crossroads. It 
has apparently pledged to raise $50 million to run ads in the upcoming 
election. Can any of my colleagues tell me what this group is and what 
it stands for? Don't the American people have a right to know that, and 
wouldn't the identity of the funders provide useful information about 
the group's agenda and what it hopes to accomplish by pumping so much 
money into elections? Even Citizens United, the group that brought the 
case that has led us to this point, is not known to most people. Why 
shouldn't the American people know who has bankrolled that group, if 
it's

[[Page S6282]]

going to run ads and try to convince people to vote a certain way?
  Disclosure is the way we make this crucial information available to 
the public. But if a group is around for 10 years, has members in all 
50 States, and receives only a small portion of its budget from 
corporations or unions, there is less reason for the kind of detailed 
information that the DISCLOSE Act requires. So while I would prefer 
that this exception wasn't in the bill, I understand why the House felt 
it was necessary, and I don't think it undermines the bill's purpose or 
makes it fundamentally unfair.
  Most of the complaints about the DISCLOSE Act are coming from 
interests that want to take advantage of one part of the Citizens 
United decision--the part that allows corporate spending on elections 
for the first time in over 100 years--and at the same time pretend that 
the other part of the decision--the part upholding disclosure 
requirements--doesn't exist. But the law doesn't work that way. As the 
old saying goes, ``you can't have your cake and eat it too.''
  Once again, I very much appreciate the leadership of the Senator from 
New York and look forward to working with him and all my colleagues to 
pass this bill. I urge my colleagues to vote for cloture on the motion 
to proceed.
  Mr. LEVIN. Mr. President, I will support the motion to proceed to 
debate on the DISCLOSE Act because I strongly believe that the voice of 
the people needs to be restored in our elections.
  In January of this year, in a 5-4 decision, the Supreme Court 
reversed long-standing precedent when it held government restrictions 
on corporate independent expenditures in elections to be 
unconstitutional in violation of the first amendment. This decision 
ignored precedent in order to reject laws that have limited the role of 
corporate money in Federal elections for decades. I believe this 
decision could severely damage public confidence in our campaign 
finance system.
  For years I have worked to maintain the integrity of our elections. I 
was a cosponsor of the Bipartisan Campaign Reform Act, BCRA, which was 
a major step toward taking the unseemly race for big bucks out of the 
campaign system and preserving the American public's right to truth in 
advertising. However, the decision in Citizens United took us 
backwards. Before Citizens United, the Federal Election Campaign Act--
FECA--generally prohibited corporations and unions from using their 
treasury funds to influence federal elections--including political 
advertising known as express advocacy, which explicitly calls for 
election or defeat of Federal candidates. To be clear: Corporations 
were still able to engage in political activities through political 
action committees, or PACS. This process ensured that shareholders were 
part of the process. After Citizens United, however, corporations can 
use unlimited amounts of money from their general treasuries for this 
purpose.
  That is why I am an original cosponsor of the Democracy is 
Strengthened by Casting Light on Spending in Elections, or the DISCLOSE 
Act. The DISCLOSE Act requires corporations, unions, or advocacy 
organizations to stand by their advertisements and inform their members 
about their election-related spending. It imposes transparency 
requirements, requires spending amounts to be posted online, and 
prevents government contractors, corporations controlled by foreigners, 
and corporate beneficiaries of TARP funds from spending money on 
elections.
  Since the Supreme Court decision in Citizens United, our elections 
are vulnerable to the influence of corporate power, which threatens to 
drown out the voices of individual Americans. The DISCLOSE Act will 
restore the public trust in both the election process and government 
itself. In our Federal elections, all voices must be heard, not just 
those with the deepest pockets. The DISCLOSE Act will help restore the 
people's voice, and I urge my colleagues to support the motion to 
proceed.
  Mr. LEAHY. Mr. President, today, the Senate is attempting to fix an 
important problem created earlier this year by the Supreme Court's 
decision in Citizens United v. Federal Election Commission. In that 
case, five Supreme Court Justices cast aside a century of law and 
opened the floodgates for corporations to drown out individual voices 
in our elections. The broad scope of the Citizens United decision was 
unnecessary and improper. At the expense of hardworking Americans, the 
Supreme Court ruled that corporations could become the predominant 
influence in our elections for years to come.
  Citizens United is the latest example in which a thin majority of the 
Supreme Court placed its own preferences over the will of hard working 
Americans. The landmark McCain-Feingold Act's campaign finance reforms 
were the product of lengthy debate in Congress as to the proper role of 
corporate money in the electoral process. Those laws strengthened the 
rights of individual voters, while carefully preserving the integrity 
of the political process. However, with one stroke of the pen, five 
Justices cast aside those years of deliberation, and substituted their 
own preferences over the will of Congress and the American people.
  The American people have expressed their concerns over this decision, 
and recognize that without congressional action, Citizens United 
threatens to impact the outcome of our elections. As representatives, 
we must fulfill our constitutional duty, and work to restore a 
meaningful role for all Americans in the political process. A vote to 
filibuster the motion to proceed to this legislation is a vote to 
ignore the real world impact this decision will have on our democratic 
process.
  The Democracy Is Strengthened by Casting Light On Spending in 
Elections--DISCLOSE--Act, is a measure I support to moderate the impact 
of the Citizens United decision. The DISCLOSE Act will add transparency 
to the campaign finance laws to help ensure that corporations cannot 
abuse their newfound constitutional rights. This legislation will 
preserve the voices of hardworking Americans in the political process 
by limiting the ability of foreign corporations to influence American 
elections, prohibiting corporations receiving taxpayer money from 
contributing to elections, and increasing disclosure requirements on 
corporate contributors, among other things.
  It is difficult to overstate the potential for harm embodied in the 
Citizens United decision. The DISCLOSE Act is necessary to prevent 
corruption in our political system, and to protect the credibility of 
our elections, which is necessary to maintain the trust of the American 
people. While some on the other side of the aisle have praised the 
Citizens United decision as a victory for the first amendment, what 
they fail to recognize is that these new rights for corporations come 
at the expense of the free speech rights of hardworking Americans. 
There is no doubt that the ability of wealthy corporations to dominate 
all mediums of advertising risks drowning out the voices of 
individuals.
  The American people expect that there will be bipartisan support for 
any legislation that would prevent corporations from drowning out their 
own voices in our elections. In that vein, I hope that the DISCLOSE Act 
will receive an up-or-down vote in the Senate, and not be the subject 
of filibusters that have become all too common in this political 
climate.
  Vermont is a State with a rich tradition of involvement in the 
democratic process. However, it is a small State, and it would not take 
much for a few corporations to outspend all of our local candidates 
combined. It is easy to imagine corporate interests flooding the 
airwaves with election ads and transforming the nature of Vermont 
campaigning. This is simply not what Vermonters expect of their 
politics. The DISCLOSE Act is a first step towards ensuring that 
Vermonters, and all Americans, can remain confident that they will 
retain a voice in the political process.
  The Citizens United decision grants corporations the same 
constitutional free speech rights as individual Americans. This is not 
what the Framers intended in drafting the opening words ``We the People 
of the United States.'' In designing the Constitution, the Founders 
spoke of and guaranteed fundamental rights to the American people--not 
to corporations, which are mentioned nowhere in the Constitution. The 
time is now to ensure that our campaign finance laws reflect this 
important distinction.

[[Page S6283]]

  The American people want their voices heard in the upcoming election. 
I urge Senators on both sides of the aisle to allow us to debate and 
address this important issue. I look forward to working with all 
Senators to pass this important legislation, and to ensure that the 
DISCLOSE Act is enacted into law.
  Mr. KERRY. Mr. President, this vote is a true test of political 
character because it goes to the very heart of American democracy. It 
will determine who will choose our Nation's leaders--faceless 
corporations or we the people.
  The Supreme Court decision in the Citizens United v. Federal Election 
Commission case earlier this year dealt a crushing blow to fairness in 
our Federal elections. This decision is why we are here today, taking a 
closer look at the hard realities of how the political system works 
here in the United States.
  For far too long, our Federal election system has been broken and the 
remedies ignored. In 1997, I wrote the Clean Money, Clean Elections Act 
to help tackle some of our most important campaign finance problems. 
That bill sought to limit the power of special interests in elections 
by offering incentives for ``clean candidates'' who swore off private 
campaign contributions and ran using only a clean money fund. 
Unfortunately, during the 13 years since that bill's introduction, we 
have seen an increase in the influence of special interests and now 
corporations on our Federal elections.
  Make no mistake about it--the ruling by the Supreme Court has only 
exacerbated the problems of the system. And that makes it all the more 
important that we no longer keep our heads buried in the sand.
  I have always believed that the single biggest flaw in our Federal 
election system is the disproportionate power and influence of money 
that drowns out the voice of average Americans. I am concerned that the 
Supreme Court's ruling in Citizens United will produce an even bigger 
tidal wave of special interest advertising funded by large faceless 
corporations, drowning out the views and opinions of our citizens.
  The Supreme Court has opened the flood gates for an unlimited amount 
of unchecked political spending by corporations--including the 
dangerous new precedent for unimpeded funding by subsidiaries of 
foreign corporations. Yes, for the first time in our history Federal 
elections in this country can be actively influenced according to the 
desires of foreign interests.
  These are dangerous developments that require immediate attention. 
But the ultimate solution must be equal in scope to the magnitude of 
the problem we face. We must undertake some remedial actions now, but 
there is only so much we can do legislatively.
  In my view, the case of Citizens United requires nothing short of a 
constitutional amendment that makes it crystal clear--that corporations 
do not have the same free speech rights as individuals. It is time that 
average Americans regain their voice in choosing who will represent 
them in our Nation's Capital.
  Mr. BAUCUS. Mr. President, President Franklin Delano Roosevelt once 
said:

       The liberty of a democracy is not safe if the people 
     tolerate growth of private power to a point where it becomes 
     stronger than their democratic state itself.

  This statement is all too true, as we are faced with the Supreme 
Court's disappointing decision in Citizens United v. Federal Elections 
Commission earlier this year. In a 5-to-4 ruling, the Supreme Court 
overturned years of congressional work to limit corporate spending and 
corruption in the political arena. As a result, corporations and labor 
unions are now free to spend unlimited dollars from their general funds 
to make independent expenditures at any time during an election cycle, 
including directly calling for the election or defeat of a candidate.
  This ruling will have far-reaching implications for the electoral 
system on a Federal, State, and local level. In his well-reasoned 
dissent, Justice Stevens noted:

       Lawmakers have a compelling constitutional basis, if not 
     also a democratic duty, to take measures designed to guard 
     against the potentially deleterious effects of corporate 
     spending in local and national races.

  Over the years, Congress and State legislatures have done just that. 
In 2002, Congress found that without regulation, corporations spend 
money on political elections in extremely large amounts. Spending at 
those levels created a corrupting influence on legislative actions.
  In response to what Justice Stevens called a ``virtual mountain of 
research'' on the potential for corruption within the election process, 
Congress passed the Bipartisan Campaign Reform Act, commonly known as 
McCain-Feingold. With an eye on prior Supreme Court rulings, Congress 
shaped McCain-Feingold to properly address concerns over evidence of 
corruption in the electoral system.
  The Supreme Court's ruling in Citizens United is bad for my State of 
Montana, it is bad for America. Montana history shows that corporations 
are eager to influence elections. As Montana attorney general Steve 
Bullock previously testified, during the turn of the century, wealthy 
copper kings of Montana's mining industry leveraged their corporate 
power to effectively buy elections.
  In 1912, Montana voters spoke out, passing some of the strongest laws 
in the Nation prohibiting corporations from acting to influence Montana 
elections. The law has withstood the test of 98 years without failing. 
Yet, because of Citizens United, Montana's strong campaign finance laws 
are now also in jeopardy. In Montana, the ruling is likely to have a 
significant impact on State and local elections. The use of corporate 
money will drown out the voices of individual Montanans. The cost of 
advertising in Montana is very low. This, however, will make it easy 
for large out-of-State corporations to dominate Montana markets in an 
effort to sway Montana races.
  When it comes to corporate spending, we are talking about a 
significant amount of money. Let's look at what corporate America is 
spending on political advertising. In 2008, the automotive industry 
spent over $30 billion in advertising. Just in the first quarter of 
this year, Wall Street firms spent $2 billion. The tobacco industry 
averages $12 billion in advertising nationwide each year. That is 
political advertising. When you start adding up these numbers, you 
start to get a sense of the magnitude of the impact Citizens United can 
have on our electoral process. Corporations will now have free rein to 
spend this kind of money to now call for the election or opposition of 
specific candidates, Federal, State, or local.
  The impact of Citizens United goes well beyond merely changing 
campaign finance law. This decision will impact the ability of 
Congress, as well as State and local legislatures, to pass laws 
designed to protect its constituents--individual Americans--when such 
legislation comes under fierce objection by large corporations. 
Corporations are now free to spend millions targeting individual 
lawmakers. Lawmakers' ability to pass laws such as consumer safety or 
investor protection now faces even greater challenges when such laws 
merely threaten the corporate bottom line.
  Congress and the American people must respond swiftly and firmly. The 
Supreme Court's ruling in Citizens United has severely altered 
Congress's ability to limit corporate spending in our electoral 
process.
  I support legislative efforts such as those to enhance disclosure and 
increase shareholder say on corporate campaign spending, and I commend 
my friend from New York, Senator Schumer, for his efforts on this 
front. However, it is clear that the surest way to address the Supreme 
Court's disappointing decisions is a constitutional amendment that will 
clarify Congress's authority to regulate corporate political spending.
  The resolution I am introducing today proposes a constitutional 
amendment that will restore Congress's authority to regulate political 
expenditures by corporations and labor organizations in support or in 
opposition to Federal candidates. It also preserves Congress's ability 
to regulate political contributions to these candidates.
  Similarly, this amendment provides States with the authority to 
regulate political contributions and expenditures in a way that works 
best for each State. This amendment does not modify the first amendment 
at all, and the language specifies that this does not affect freedom of 
the press in any way.

[[Page S6284]]

  The Framers provided a series of steps required to amend the 
Constitution, and this process should not be taken lightly. This 
resolution requires the support of a two-thirds majority of the Senate 
and the House and subsequent ratification by three-quarters of the 
States. I recognize the challenges of that process, but I believe this 
is a discussion and debate that Congress and the American people should 
have.
  We must act. We must act now to restore Americans' faith in our 
political electoral process. I urge my colleagues to support this 
amendment.
  The PRESIDING OFFICER (Mr. Goodwin). The majority leader is 
recognized.
  Mr. REID. Mr. President, if the time is limited to 15 minutes, I will 
use leader time to complete my statement.
  Mr. President, my friend the Republican leader talked about a number 
of things in his presentation, all the time making remarks such as 
``reading the bill caused unrestrained laughter.'' Well, 85 percent of 
the American people support this legislation.
  Supreme Court Justice Louis Brandeis offered disclosure and 
transparency as the antidote to swollen corporate influence. Sunlight, 
he said, is ``the best of disinfectants.'' The man who would replace 
him on the Supreme Court shed light on the importance of the 
individual's vote, the voice that anchors our democracy. William O. 
Douglas, who served on the bench longer than any other Justice, said 
that the right to vote means more than simply the right to pull a lever 
on election day. He said it also means ``the right to have the vote 
counted at full value, without dilution or discount.'' Both Brandeis 
and Douglas were right. These two Justices' observations should guide 
us as we correct an error made by today's Supreme Court--the Roberts 
Court--when it wrongly ruled in January that corporations, special 
interests, and foreign governments can flood America's political system 
with contributions in unlimited amounts and in secrecy. That decision 
was wrong.
  The campaign advertisements at issue in the case, Citizens United v. 
Federal Election Commission, and in the bill before us, the DISCLOSE 
Act, are presumably about giving the electorate the information it 
needs to make an informed choice. But that information must also 
include its source because an open political process demands the 
disclosure of who is paying the bills. We are all agreed that voters 
can believe, criticize, or support any ad they wish, but a citizen 
cannot responsibly do any of that if he doesn't know how the ad found 
its way into his living room.
  Our votes are the most precious part of our democracy. If someone is 
going to such great lengths to convince us how to use it, should we not 
at least know their names? Put differently, why would we let those who 
go to such great lengths to conceal their names--and those who try to 
protect them by blocking this bill--dilute or manipulate our voices?
  The principle behind the bill is a simple belief that neither the 
American voter at home nor the democratic process at large benefits 
from campaigns funded by secret sponsors who are hidden from public 
view. Quite the opposite, in fact; such secrecy is harmful because it 
deliberately keeps from voters the identity of those trying to 
influence their choices and sway our elections.
  This is also about trust and confidence in our democracy. Whenever 
the voice of the corporation is the loudest, the voice of the citizen 
is harder to hear. If citizens don't have reason to trust the electoral 
process, voters have little reason to trust the outcome of the 
election, and constituents ultimately have no reason to trust their 
elected government.
  This Supreme Court case and this piece of legislation are not only 
about campaign checks; it is also about checks and balances. The Senate 
is not reversing or circumventing the Court's ruling; we are only 
bringing back transparency, accountability, and fairness to the system 
so it can work best for the people it serves. We are doing that in 
three ways.
  First, this bill says that if you are a foreign corporation or a 
foreign Government, you can't spend money in American elections.
  Second, it says if you are a company that benefited from TARP--the 
emergency program that kept our largest institutions and our economy 
afloat--you can't turn around and give those taxpayer dollars to a 
political candidate.
  Third, to prevent both the possibility and the perception of a pay-
to-play scheme, it says that if you are a government contractor, you 
cannot contribute to campaigns either.
  These three elements are written primarily to protect voters, but 
voters are not the only ones who will benefit. If you are a shareholder 
of a company rich enough to put a campaign ad on television, wouldn't 
you want to know how it is using your investment and spending your 
money? Of course.
  CEOs and special interests can run all the ads they want today, and 
after the DISCLOSE Act is law they will still be able to do that. That 
is their right. The difference is that our bill says you just can't pay 
for an ad; they have to stand by that ad also. This new law will not 
stifle anybody's speech or their ability to advertise; it merely 
requires them to do so in the open.
  What could be more patriotic and less partisan than protecting a 
person's vote and all the information that goes into that decision?
  The desire for greater real-time disclosure of election spending was 
not long ago a bipartisan concept. It is incredible that we now have to 
struggle to find a supermajority--60 Senators--even just to debate a 
bill the principles of which both parties once supported and that 9 in 
10 Americans want us to pass.
  What else is new?
  When we fought to protect every American's right to afford good 
health, the other side jumped to the defense of corporate America and 
the special interests in the insurance racket.
  When we fought to protect Americans from the unchecked greed in the 
financial industry--recklessness--that cost 8 million Americans jobs 
and nearly collapsed our economy, the other side jumped to the defense 
of corporate America and special interests--this time, those on Wall 
Street.
  When we fought to hold BP accountable for its negligence, the other 
side jumped to the defense of the corporation responsible for the 
greatest manmade environmental disaster in history, going so far as to 
apologize to its now-ousted CEO.
  When we ran to the side of millions who lost their jobs in the 
recession and exhausted their unemployment insurance, while they 
searched for hard-to-find jobs, the other side argued that what our 
economy needed was more tax breaks for multimillionaires.
  On the stimulus bill, 93 percent of the Republicans voted against it 
in the Senate. On the unemployment insurance extension, 88 percent of 
the Republicans voted against that. On Americans' jobs and closing tax 
loopholes, 86 percent of the Republicans voted against that. On the 
health care bill, 100 percent of the Republicans voted against it. On 
the HIRE Act, 68 percent of Republicans voted against. Even on cash for 
clunkers--which was, by all estimates, a great success--82 percent of 
the Republicans voted against it.
  This issue is no different than those I went through. The bill asks 
us to put the people before the special interests. It asks us to ensure 
that an individual's vote speaks louder than the deep pockets of the 
powerful.
  It asks us this so the next time a health insurance company or a big 
Wall Street bank or a major oil company or any other special interest 
puts a campaign ad on the air, everyone will know who did it. It will 
make sure viewers can consider the source as they consider their vote.
  Americans have fought so hard and at so great a price to ensure the 
voting rights of every individual. We have removed obstacles between 
people and the ballot box, removed corruption from the campaign 
process, and gone to great lengths to encourage everyone to participate 
on election day.
  Why would we diminish a right that was so hard won? Why would we go 
backward?
  This new law will return our popular elections to the people by 
limiting anyone's ability to dilute a citizen's power and by letting in 
the sunlight that disinfects our democracy.
  Who could oppose that? The only ones fearful of transparency are 
those with something to hide. That is what this legislation is all 
about.

[[Page S6285]]

  It is my understanding we are ready for a vote.
  The PRESIDING OFFICER. Pursuant to rule XXII, the clerk will report 
the motion to invoke cloture.
  The assistant editor of the Daily Digest read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 476, S. 3628, the DISCLOSE Act.
         Harry Reid, Charles E. Schumer, Sherrod Brown, Claire 
           McCaskill, Patrick J. Leahy, John F. Kerry, Byron L. 
           Dorgan, Patty Murray, Barbara Boxer, Roland W. Burris, 
           Robert Menendez, Jack Reed, Joseph I. Lieberman, Tom 
           Udall, Kent Conrad, Mark Begich, Robert P. Casey, Jr.

  Mr. REID. Mr. President, I ask unanimous consent that the mandatory 
quorum call be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 3628, a bill to amend the Federal Election 
Campaign Act of 1971 to prohibit foreign influence in Federal 
elections, to prohibit government contractors from making expenditures 
with respect to such elections, and to establish additional disclosure 
requirements with respect to spending in such elections, and for other 
purposes, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Connecticut (Mr. 
Lieberman) is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Nevada (Mr. Ensign).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 57, nays 41, as follows:

                      [Rollcall Vote No. 220 Leg.]

                                YEAS--57

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown (OH)
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Goodwin
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--41

     Alexander
     Barrasso
     Bennett
     Bond
     Brown (MA)
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McCain
     McConnell
     Murkowski
     Reid
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--2

     Ensign
     Lieberman
  The PRESIDING OFFICER. On this vote, the yeas are 57, the nays are 
41. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  The majority leader is recognized.
  Mr. REID. Mr. President, I enter a motion to reconsider the vote by 
which cloture was not invoked.
  The PRESIDING OFFICER. The motion is entered.
  Mr. REID. Mr. President, for the information of the Members of the 
Senate, we are going to move to the small business jobs bill. I have 
spoken with the Republican leader, and staff is aware, that we are 
going to have the same vote we had on Thursday night--that will be the 
amendment--with the exception that we are going to place in that bill 
the agricultural disaster relief that has been around for a long time. 
That will be added to this small jobs bill.
  I have spoken with Senator Landrieu, and she has indicated to me that 
she has had conversations with Members of the minority, and they would 
like an amendment or two or three. I think that will be about the limit 
that we should do. We will be happy to have side-by-sides or have 
something that would give us the opportunity to see what those 
amendments are going to be.
  So in short, we are going to work and start legislating as early as 
we can in the morning. I don't think we will be able to do much 
tonight. We will consider that. But everyone should be ready tomorrow. 
We are going to do our utmost to finish this bill tomorrow.
  Everyone should understand that we are going to do our best to get 
out of here a week from Friday, but we will need the cooperation of 
Senators on a number of things. We have a fairly long list of things we 
need to do before we leave.
  There will be no further rollcall votes today. The tree we talked 
about we have to tear down, but it is my understanding that we 
shouldn't have a problem doing that.
  Mr. McCONNELL. Mr. President, I would say to my friend, the majority 
leader, he knows because I believe he has some of our amendments, what 
we would like to offer, and I think this is a conversation we can have 
off the floor until we can figure out a way to move forward.
  Mr. REID. My only purpose here is that we can go through the program 
of tearing the tree down, but those votes are somewhat inconsequential. 
I don't think we need to do that this afternoon. It is my 
understanding, after having spoken to Senator McConnell, that everyone 
knows what the amendment is going to be. I have agreed there can be 
amendments offered by the Republicans, and it is only a question of 
what they are going to be.
  Mr. McCONNELL. I think that is a correct understanding.
  Mr. REID. So I have designated Mary Landrieu.
  The amendment is just as I have outlined, and we should have it in 5 
minutes.
  Mr. President, what is the pending business?

                          ____________________