Congressional Record, Volume 156 Issue 128 (Wednesday, September 22, 2010)

[Congressional Record Volume 156, Number 128 (Wednesday, September 22, 2010)]
[Senate]
[Pages S7306-S7309]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

THE DISCLOSE ACT

Mr. MERKLEY. Mr. President, I rise to speak about an issue of
critical importance to the future of our democracy. I have in my hand
the majority opinion titled ``Citizens United.''
This Supreme Court decision, decided on the narrowest of grounds, is
of profound importance to our Nation and how the voices of citizens get
heard or get drowned out. This decision, Citizens United, is a dagger
poised at the heart of American democracy.
Our Nation is unique in world history in that it was founded not on
nationality of royal bloodlines but on a simple idea, a simple yet
revolutionary idea that the country's people are in charge.
As was so often the case, Abraham Lincoln said it better than most.
He said, the United States is a ``government of the people, by the
people, for the people.'' What that means is that we elected officials
work for the people. They elect us. They are in charge.
But this formula, government by and for the people, cannot survive if
our elections are not open, free, and fair, and Citizens United ends
open, free, and fair elections in America. This decision says that
unlimited secret and foreign funds can be spent on elections in the
United States of America. Let me restate that. This decision, Citizens
United, says unlimited secret funds can be spent on elections in the
United States of America.
This is not just some hypothetical. Reports estimate that over the
last few weeks, $24 million has been spent in secret spending, with no
ability to trace who put it into campaigns. The results are negative
attack ads barraging candidates in State after State after State,
under, I am sure, pleasant-sounding names such as Citizens for a Strong
America or Citizens for Blue Skies or Citizens for a Better Nation,
front groups that are using this secret money, allowed by this
decision, to drown out the voice of the American citizen in elections
across this land.
Government is not by and for the people if corporations and even
foreign corporations and giant government contractors are able to
hijack our electoral process to run millions of dollars of attack ads
against any candidate or legislator who dares put the public interest
ahead of the company's bottom line.
Our Constitution, through the first amendment, puts the highest
protection on political speech, recognizing how important it is that
citizens be able to debate the merits of candidates and ideas. But the
essence of the first amendment is that competing voices should be heard
in the marketplace of ideas. The Citizens United decision gave the
largest corporations a stadium sound system to drown out the voices of
our citizens.
Let me give you some sense of this. Take a single corporation in
2008, Exxon Corporation. Exxon Corporation made a lot of money in 2008.
If it had spent just 3 percent of the total net revenue it had that
year, that would exceed all the spending by Presidential candidates for
the 2008 election. Three percent of a single corporation's net revenues
would drown out all the dollars spent by citizens in the Presidential
race in the 2008 election. That is the stadium sound system I am
talking about.
Think about the scale. My Senate race was far and away the most
expensive election in Oregon history. Two candidates together spent
about $20 million. To translate that back to a single corporation,
Exxon, that would be the amount of money in net profits they made every
10 hours. You get some sense, then, of the challenge.
If you like negative ads, you will love the impact of Citizens
United. Imagine what corporations will do to put favored candidates in
office. The sheer volume of money could allow corporations to handpick
their candidates, providing unlimited support to their campaigns, and
take out anyone who dares to stand for the public interest.
The DISCLOSE Act we are debating is not a perfect solution to this
attack on American democracy. But it does change one critical feature;
that is, secret spending becomes publicly disclosed spending.
My colleagues on both sides of the aisle have spoken time and time
again about the importance of public disclosure and democracy. One of
my colleagues from Texas said:

I think the system needs more transparency so people can
reach their own conclusions. In other words, people should
know who is funding that campaign ad.

One of my colleagues from Tennessee:

To me, campaign finance reform means individual
contributions, free speech, and full disclosure. In other
words, any individual can give whatever they want as long as
it is disclosed every day on the Internet. Otherwise you
restrict free speech and favor super rich candidates,
candidates with famous names, the media and special interest
groups, all of whom can spend unlimited money.

That is a strong statement by my friend and colleague from Tennessee
in support of disclosure. The Republican floor leader, speaking in
1997:

Public dealerships of campaign contributions and spending
and spending should be expedited so voters can judge for
themselves what is inappropriate.

How can a voter judge the content of the ad if they do not know what
money is behind it? So disclosure is something that has been a
bipartisan concept. Folks have referred to it as sunshine is the best
disinfectant. So this bill brings transparency. The DISCLOSE Act makes
the CEO of a company stand by its words. The CEO would have to say, at
the end of the ad, that they approved this message, just like political
candidates have to do right now.
It is common sense. If a company is willing to spend millions working
against a candidate, voters, our citizens, have a right to know who is
involved instead of allowing them to hide behind shadowy front groups.
Similarly, this bill would require 527 groups, which exist solely to
influence elections, to be transparent about who is funding them.
Voters have a right to know where ads and campaign dollars come from.
A second issue this act takes on is the pay-to-play issue; that is,
the concept that groups that are competing for government contracts and
winning those contracts have a particular conflict of interest when it
comes to spending large volumes on campaigns. So this gets rid of that
conflict of interest. It says it bars government contractors from
running campaign ads or

[[Page S7307]]

paying for other campaign activities on behalf of a Federal candidate.
We understand this conflict of interest. We have the Hatch Act. We
understand Federal employees have a conflict of interest. We also
understand government contractors have a conflict of interest. This
bill also takes on the issue of foreign-owned corporations. It says
that if a company is 20 percent foreign owned, it is not eligible to
allow these massive expenditures on behalf of particular political
candidates or causes.
Do we want to leave the door open to foreign corporations spending
unlimited sums here in America to change the course of our Nation? I do
not think so. I do not think any red-blooded American wants foreign
corporations dictating the future of the United States of America. That
is what this act is about.
Essentially, what the Citizens United decision did, it created a
``supercitizen'' who can operate in secret with unlimited funds to
influence American elections. A few years ago, I was with my son on the
first floor of the Lincoln Memorial, down under the stairs. I saw a
quote that had been posted on the wall. It said something to the effect
of: The greatest threat to the success of our Republic is that the
citizens have an equal voice.
I said that is an interesting quote coming from a President in
wartime, in a civil war, dealing with slavery. So I asked the ranger:
Say, do you know the background of that quote? Because I was surprised
President Lincoln did not say the biggest threat was the war or slavery
or reuniting the sides or preserving the Constitution. But he said: the
citizens' voice, preserving the citizens' voice.
The ranger lit up and said: Yes, actually, I do know the background
to that. He said: During the civil war, President Lincoln was very
concerned that the military contracts that were being let by the
government were resulting in numerous representatives of companies
coming to DC and lobbying intensely to get those contracts. He was
concerned that voice would drown out the voice of the people.
It is no wonder. It fits right with a President who understood the
heart of the genius of American democracy, that we are talking about
government by and for the people.
Well, Lincoln's concern about that conflict of interest is one that
should be magnified many times today in the context of Citizens United.
Citizens United, that allows unlimited secret donations and foreign
donations to influence the course of American elections.
President Lincoln reminds us the essence of our Nation, the cause
that brought a generation of patriots to challenge the greatest
military power of the 18th century, the idea that has inspired people
to leave everything to come to our shores is a government of people, by
the people, for the people.
So let's say no to secret spending. Let's say no to foreign
corporations. Let's say no to the conflict of interest of government
contractors using their profits from their contracts to weigh in and
try to influence and getting favoritism with candidates. Let's say yes
to government by and for the people.
We need some profiles in courage today to preserve the heart of our
democracy, government by and for the people.
I yield the floor.
The PRESIDING OFFICER (Mr. Pryor.) The Senator from New Jersey.
Mr. MENENDEZ. Mr. President, I come to the floor in an effort to try
to get my colleagues on the other side of the aisle to join us in
preserving our democracy. I heard the Republican leader's remarks that
we should be focused on jobs, and we have been, notwithstanding the
constant obstruction of our colleagues on the other side of the aisle
by using the filibuster countless times in terms of us being able to
move forward on jobs.
But this legislation is about jobs. Some people might ask: Well, what
does the disclosure of campaign finance have to do with jobs? It has
everything to do with it because the murky special interests that are
out there spending unlimited amounts of corporate money are not
spending it because they just want to participate in our electoral
process without a purpose. They are participating because they have a
purpose.
The purpose is to elect those individuals who ultimately will respond
to their agenda, which is an agenda that, in many cases, works against
the interests of working men and women in this country; works against
some of the very essence of legislation we have passed and signed into
law such as equal pay for equal work; works against the very interests
of what we are trying to accomplish on food safety so none of our
families will ever get ill because of a product that should have never
made it to their table in the first place; works against the interests
of those in this country who want to work and give a hard day's work
for a fair day's wage and at the same time work in conditions that
ensure their safety is preserved and they can go home at the end of a
long day to their loved ones and come home safe and secure--those and
so many other interests. So when we talk about jobs, knowing who is out
there spending money for what purpose, particularly for what corporate
purpose, is incredibly important to how we create jobs, what do we do
in terms of working conditions, what do we do in terms of wages, what
do we do in terms of equity. This is about jobs. It is also about our
democracy.

Since the Supreme Court made its decision allowing corporate
interests and labor interests to spend money unlimitedly--and, by the
way, in doing so also allow the possibility of foreign corporations,
many of which are not just private foreign entities, they are foreign
entities controlled by a government--the money is flowing. Don't
believe me, even though we have seen since August 15 to last night $21
million already spent on the Republican side of the aisle in
independent expenditures, unknown money, no person, no face, no name.
That is why I guess we can't seem to get a vote. But don't listen to
me. Listen to Michael Toner, former Republican Federal Election
Commission Commissioner. He said:

I can tell you from personal experience, the money's
flowing.

For what purpose? Corporations just spending their money for
something other than the pursuit of the bottom line? When have we known
a corporation to spend its money recklessly without pursuing an
interest in the bottom line? I haven't seen too many of those. They may
have made bad mistakes, but they have never purposely spent money for
the purposes of anything other than to improve their bottom line. So if
they are spending money in elections, they are spending to make sure
they can improve their bottom line. This undermines the very essence of
our democracy where we want individual citizens and voters to determine
the outcome of the elections, not the monied interests.
In this process, this was a bipartisan effort originally when
Congress said: We don't want corporate or labor money to be spent
unlimitedly in Federal elections. We have had continuous comments since
then. Here is the Republican leader, Senator McConnell:

Public disclosure of campaign contributions and spending
should be expedited so voters can judge for themselves what
is appropriate.

We have changed that view because all we are trying to do is say: OK,
Supreme Court, you are going to allow the money to flow from the
corporations. Let us know who is spending it and on whom they are
spending it and for what purpose. Then the voters can judge for
themselves what is appropriate.
We have had others as well who are in the midst of this election
process, such as my counterpart Senator Cornyn, saying:

I think the system needs more transparency, so people can
more easily reach their own conclusions.

What do we have? Less transparency. So an individual who gives their
money to a candidate, they get fully disclosed. A corporation or a
special interest or a foreign interest gives money, they can hide
behind these shadowy groups. They have great names--Americans for this,
Americans for that. The problem is, we don't even know if one of those
groups that call themselves Americans for X, Y, or Z is actually an
American corporation. With the loophole created by virtue of allowing
foreign corporations to now spend in our elections, it is the ultimate
erosion of our democracy.
If Members don't think they will, let me cite a few examples of why
they

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might. Imagine if BP could go ahead and influence the elections of a
whole host of Senators because they want to determine what our energy
and drilling policy is by electing those who ultimately share their
views. After what they have done in the Gulf of Mexico, after what they
refused to do in testifying before a hearing that I will hold next week
about the release of the Pan Am 103 bomber and what role they played in
lobbying for the release of that terrorist that killed Americans they
can't even send a witness to our hearing, do my colleagues think they
would not be interested in spending millions to determine who can be
supportive of what they want?
Do Members believe the Chinese wouldn't ultimately make investments
in candidates who continue to espouse a philosophy that allows jobs to
be offshored? Talk about jobs to be offshored to countries such as
China where manufacturing is dirt cheap and rights are nonexistent and
working conditions virtually don't exist and the environment is not a
question. Do Members think it is impossible for that to happen?
Do Members think it is impossible for Hugo Chavez not to be spending
money here through Citgo and saying: Let me support those who support
the type of views I hold and who will engage in an energy policy that
is much different than I can influence with Venezuelan oil?
Do my colleagues think there are those in the corporate sector who
have been fighting food safety--not all but some--who wouldn't elect
those individuals who will ensure that we can't have the food safety
procedures to come into the 21st century so that we can ultimately
ensure that our food is safe? No, they would rather have the ability to
do what they do and not have to worry about the consequences of safety
to improve the bottom line.
I could go on and on with examples of why foreign interests spend
well in our elections to dictate policies that ultimately would inure
to the detriment of the American people and to the benefit of their
interests. That is what we are fighting against. That is what we are
trying to undo in terms of the legislation we are considering, to
disclose. What a terrible thing, to disclose. We are not even stopping
the contributions because the Supreme Court said the contributions can
be made by corporations, but at least let's know who is giving them and
who they are giving it to and for what ostensible purpose.
I see a continuing erosion of our democracy through the present
circumstances. I see why we can't get a vote on the other side of the
aisle because, overwhelmingly, they are receiving the benefits of this
undisclosed, shadowy money that no one knows where it comes from, no
one knows who is giving, for what purposes. Is that really the American
way? Is that what the average voter wants to see in terms of their
democracy? I don't think so.
I urge my colleagues to follow the essence of McCain-Feingold.
Senator McCain and Senator Feingold authored legislation. All of those
who made comments about disclosure, it is time to at least simply
disclose. It is time to allow the American people to know who is
engaged in this election, who is spending millions. They are talking
about raising and spending nearly $300 million. There are 41 days to
the election. We would not know where it came from, who is giving it,
for what purpose. That is the ultimate corruption of our system.
I hope my colleagues will vote to proceed. Let's have the debate and,
more importantly, let's cast a final vote.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I believe the eloquence of Senator
Menendez marks a high point in the debate. I don't know that anyone
could have expressed what is at stake as well as he did. I will make a
humble attempt to build on what he said. Before he leaves the Chamber,
in a country of, by, and for the people--our country--the people have a
right to know who is supporting their Senators, who is opposing their
Senators, who is supporting their Members of Congress, who is opposing
them. That is all we are asking. It is simple. It is the American way.
We do things in the light. It makes us different than other countries.
The DISCLOSE Act is essential. I thank my colleague for his leadership.
The DISCLOSE Act is a much needed response to a Supreme Court
decision in Citizens United which essentially allows big money to drown
out the voices of our people. I have always thought and believed--and
still believe--that what makes us great is that we try to have laws
that level the playing field so people who are extremely wealthy don't
have more to say than those of modest means. How do we do that in
everyday life? We try to have a public school system so we ensure that
all children get an education. I personally am a product of public
schools, kindergarten through college. Were it not for that, my family
couldn't afford to send me to private schools. How could I have ever
made it to a decent job, let alone to the Senate? In all of the things
we try to do to try to have a safety net for people who are unemployed,
everything we do, it seems to me has been to ensure we have a thriving
middle class, that the American dream is there for people who work hard
for it.
We don't want to get to a situation where simply because a
corporation has, frankly, billions of dollars they can spend on
campaigns, they can simply do it in secret and there is an ad run
against a sitting Senator on either side of the aisle, and we don't
have any clue who has put that money down. As Senator Menendez says,
they pick great names: Americans for Justice, Americans for a Better
Tomorrow. They name great names. But who is behind it?
Frankly, we could have a foreign country behind that ad if they had a
subsidiary in America they control. That foreign country could very
well be playing in our elections as we speak with the millions of
dollars we see coming into the Senate races.
In the Citizens United case, the majority of the Court reversed a
100-year-old law and overruled decades of legal precedent when they
decided that corporations and labor unions cannot be restricted from
spending unlimited amounts in Federal elections because they equated
any limits with violating free speech. I ask the question in this great
country of ours, where we all have the privilege of living and we all
have the privilege and responsibility of voting: Why is it that a
nameless, faceless entity has more speech than any one of our citizens?
Why? Because these corporations are worth trillions of dollars. The
average person obviously has nowhere near it. The average income in our
country is about $50,000 for a family now, maybe a little less. How
would that person compete with a $1 trillion corporation? The Court
doesn't seem to care about that, the majority, a slim majority, when
they equate spending limits with speech.
What they actually said is that a corporation worth trillions gets to
have much more speech than any one of my constituents in California or
any one person in the whole United States of America. The decision was
astounding.
It defies common sense to conclude that corporations or labor unions
are citizens in the eyes of the law.
I said to my staff: Have you ever called a corporation and asked the
corporation to go to lunch with you? Corporations are not people. They
are entities. How the Court could equate corporations with people is
amazing.
Mr. President, I ask unanimous consent for 2 additional minutes, and
then I will finish up. And add that--
Mr. BOND. Mr. President, I do not object. Whatever time she needs I
hope will be added on to the time that has previously been allotted. I
do not want to cut short the comments of my friend from California.
Mrs. BOXER. That is extremely kind of my colleague.
Mr. President, I ask unanimous consent to take 5 minutes and to add
that on to Senator Bond's time.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. BOXER. So the decision was astounding to equate people with
corporations and unions, on its face. As Justice Stevens wrote in his
dissent:

Corporations have no consciences, no beliefs, no feelings,
no thoughts, no desires . . . they are not themselves members
of ``We the People'' by whom and for whom our Constitution
was established.

We all know corporations are important in our lives and they make
enormous contributions to society, but

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they are not people, and their profit motive keeps them going. That is
our system, and that is fine. But all we are saying in this debate over
the DISCLOSE Act is, if a corporation or a union is going to take out
an ad against a Senator or for a Senator, or against a challenger or
for a challenger, that they simply stand up and say--that is, the CEO
of the corporation: I am Mr. Smith, and I approved this message.
When I make a commercial or any of my colleagues or any of our
challengers, they need to do that. You will see that on every
commercial: I am so and so, and I approved this message.
So all we are saying is, level the playing field--at least that. We
need to do a lot more to fix this Supreme Court decision, but at
minimum let's have disclosure. The Fortune 100 companies had combined
revenues of $13.1 trillion during the 2007-2008 election cycle. They
had those revenues. If they devoted just 1 percent of that--1 percent
of that--it would double the federally reported disbursements of all
American political parties and PACs combined. I think we cannot allow
our electoral process to be dominated by the special interests.
So all we are saying in the DISCLOSE Act is, stand up and be counted.
Let us know who you are. We have to know who you are. Do not hide
behind some shadowy name of a group. Again, these names are all very
nice: Americans for this and Americans for that. Let us know who you
are. That is all we are saying.
This is a government of, by, and for the people. The people have a
right to know who is contributing to us, to our opponents, and it is
very simple.
There could be foreign influence here, again I would say. In our
bill, we basically say no foreign influence. If you are a domestic
corporation who is controlled by a foreign country or a foreign
corporation--say if China, say in Venezuela, say anywhere; pick your
country--you cannot take an ad. This is America. We ought to know who
is contributing these huge, enormous sums. We ought to know who they
are. Our voters ought to know who they are. The American people deserve
nothing less.
So I would hope when we take up this vote again, there will be no
more filibusters over this issue. I have never seen so many
filibusters. I have been here a while. Let's go to this legislation.
Let's hear the other side defend why they think foreign countries or
foreign corporations should be able to play in our elections. Let them
defend it if they want to. That is fine. That is fair. I am sure they
will come up with reasons.
But yesterday we could not go to the military bill. It has a pay
raise for our soldiers. That is put on hold because people did not want
to vote on the DREAM Act. They did not want to debate don't ask, don't
tell. I do not understand it. Now we have a situation where they are
filibustering us being able to go to this very commonsense bill, the
DISCLOSE Act, which many of my colleagues on the other side have
supported in the past--simple disclosure, transparency. I could read
you chapter and verse of my colleagues on the other side who were
filibustering the DISCLOSE Act in the past saying: We want
transparency.
So I think this is a pretty open and shut case. The American people
have a right to know who is influencing their elections. Just have
these corporate executives, these union executives stand up and say: I
am so and so, and I support this message, and I paid for it.
With that, I am happy to yield the floor with great thanks to my
colleague for allowing me the opportunity to complete my remarks.
Thank you very much. I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.

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