[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for the quorum call be rescinded.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
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$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
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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.
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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.
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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?
____________________