[Congressional Record Volume 156, Number 128 (Wednesday, September 22, 2010)]
[Senate]
[Pages S7317-S7323]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE DISCLOSE ACT
Mr. KERRY. Mr. President, in the 25 years I have had the privilege of
serving in the Senate, I have regrettably, in the course of almost
every election period, with one brief exception when we had the McCain-
Feingold bill in
[[Page S7318]]
place, seen our system of funding campaigns become increasingly broken.
The truth is, a lot of the anger the American people feel today--
rightfully--for the absence of this Congress--not just this particular
session but the Congress of the United States being able to directly
address the concerns of the American people--a lot of that anger really
ought to be directed at the system itself, at the fact that we have
locked in place funding of campaigns that robs the American people of
their voice, that steals the legitimacy of our democracy, and
concentrates decisionmaking in the hands of the powerful, individuals
with a lot of money or powerful corporations with a lot of money.
Money is driving American politics. Money is driving the American
political agenda. Money decides what gets heard and does not get heard
around here, what gets acted on and does not, and how it gets acted on
in many cases. Every so often we have bubbling up a legitimate kind of
citizen energy that motivates one particular reaction here or another,
whether it is a tax bill or a particular piece of legislation for
women, pay, but it is rare now. It is actually rare that the kind of
grassroots effort that traditionally we think of when we think of
legitimate democracy, that it is felt in its appropriate ways.
The truth is, the increased influence of special interest money, big
money in our politics, is robbing the average citizen of his or her
voice in setting America's agenda. There are far more poor people,
there are far more children, there are far more interests that don't
get represented. We constantly see, like the debate we have had
recently over carried interest, for instance, or a number of other
interests here get as much time and as much debate over one or two of
those single issues as some of those that affect a far greater
proportion of the population.
As a result of the Supreme Court's ruling in the case of Citizens
United, we have seen an incredible step backwards from accountability,
a step backwards from preserving our democracy, and an incredible gift
to the power of money. In the last few years, under the McCain-Feingold
bill and under our rules, at least if a company wanted to participate
in the election, it had to go out and ask its executives to contribute.
We went through the sort of charade of having a fundraising event at
which a whole bunch of executives would have to show up or people who
worked for a company, and they wrote a check. The checks were bundled
together, and there were your contributions. But at least there was
accountability. At least people knew those people had contributed. At
least people saw where it was coming from and who it was coming from.
Under the Citizens United decision, all a CEO has to do is put it in
the budget of the corporation. The corporation can budget annually. We
are going to put $2 million, and the CEO can turn that money over in
its totality to some group that is formed to destroy somebody's
reputation with a lot of lies, just pour the money over. That is it.
Total secrecy. We don't even get to know who gave the money. No
accountability. They just turn the money over to lobbyists who run the
media campaigns to help their friends and defeat their opponents in
Congress. We can have the best Congress. People have always said that
money buys people in public life. But this is a step toward the
greatest certification of that I have ever seen. It sends a chilling
message to candidates without means, which is most candidates, that
they can't combat the bottomless pocket of a K Street lobbyist who has
some cabal of corporations that want to pour a bunch of money in to get
their special interests protected.
So American workers in Ohio or Indiana or any other State who wonder
why those jobs went overseas, there is a tax benefit that helps those
companies actually take those jobs overseas. Why is that tax benefit
there? Why do we have thousands upon thousands of pages of special
interest tax provisions in our Tax Code? Because the lobbyists and the
powerful people are able to be heard, and they are able to work their
will. They are able to make that happen.
Now we have a rule, because the Supreme Court ruled that corporations
are like people and have the same rights. So we have a new assault on
America's democracy. I mean that. It is an assault on our democracy. We
have always had money in the marketplace of politics. We understand
that. For years people have tried to find one way or another of trying
to address that concern. This is not a new concern of the American
people. It is hard to say where we are headed, all of us, in our
careers in public life. I am, obviously, on the back end of that
runway, but I am stunned by what the impact of this is going to mean to
our country and to the ability of average voices to be heard.
The humorous Will Rogers once quipped that ``politics has gotten so
expensive, it takes a lot of money even to get beat.'' But Will Rogers
would be stunned by the amount of money in politics today.
In 2008, a record total of $5.2 billion was spent by all the
Presidential, Senate, and House candidates. When I ran for President in
2004 on a national basis, we spent $4.1 billion. That broke the 2000
record when Al Gore ran of $3.1 billion. So we go from $3.1 billion to
$4.1 billion to $5.2 billion.
Now we have a new rule. All these secret funds can come into the
political process. We have already broken the record in 2010 from the
2006 race by a huge amount. I think the total amount of money spent in
2006, which was an off Presidential year, was about somewhere around
$700 something million, $800 million. We are well over $1.2, $1.3
billion already in this cycle. That is just the campaign spending. That
is the direct money that goes into the campaigns.
But last year, special interests spent a record of $3.47 billion
hiring lobbyists. The rest of the country might have been suffering
from a recession, but it was a great year for K Street in Washington, a
5-percent increase in fees over the previous year.
President Obama's ``change'' agenda stirred up so many people who
were going to be opposed to it from the very beginning--health care,
banking regulation, all the things that have undermined Americans in
the last years--they wanted to preserve the status quo. They sat up,
and they came up with about $1.3 million spent per minute in 2009. That
is the amount the watchdog group, Center for Responsive Politics,
arrived at when they took the $3.47 billion that lobbyists collected
and divided it by the number of hours Congress was in session in 2009.
It comes out to $1.3 million per minute spent to try to hold on to the
status quo.
Now thanks to the Supreme Court, it is a lot easier for special
interests to finance and orchestrate contrived political movements.
Unbelievably, the Court ruled in Citizens United that corporations have
the same right to speech as individuals. Therefore, they can spend
unlimited amounts of money in elections.
I remember from my days in law school learning distinctly that a
corporation is a fictitious entity. It is a fictitious entity created
as a matter of law to protect the corporation in the conduct of its
economic business, not to protect it in the context of giving it the
same rights as an individual with respect to speech. For a Supreme
Court of the United States to somehow put a corporation on the same
plane as the individual citizen is absolutely extraordinary.
As a result, we are now seeing a whole bunch of spending by shadowy
groups run by long-time Republican Party officials and activists that
is going to end up in the hundreds of millions of dollars, money that
cannot be traced to its source. How do Members feel about that? How do
Americans feel about the millions of dollars being spent and they don't
know who is spending it? Unaccountable democracy.
What we are talking about, I suppose, means little to the
corporations compared to what they are going to get in terms of
blocking a regulation. We have people here who want to delay the
regulations for clean air. They are going to come in here and try to
say: We can't proceed now to have clean air. We have to delay it. So
more coal fumes will pollute the air and more people will get sick and
so forth. But they will try to work their way, and they have a lot of
money to try to do it with.
The Supreme Court's ruling also clears the way for the domestic
subsidiary of a foreign corporation to
[[Page S7319]]
spend unlimited amounts to influence our elections.
I want people to think about that. A foreign corporation and a
national of a foreign country are barred under the law from
contributing to Federal or State elections. But nothing in the law bars
the foreign subsidiary incorporated in the United States from doing so.
Those subsidiaries do not answer to the American people. They answer to
their corporate parents way off in some other country. That means that
in no uncertain way a foreign corporation can indeed play in an
American election, and clever people will not have a hard time in
covering that trail.
So today, on the floor of the Senate, in Washington, DC, in the year
of the tea party--when the tea party is asking for accountability, and
the tea party is asking for sunshine, and they want reform--I would
like to hear the tea party stand up today and say: Republicans ought to
vote overwhelmingly to have sunshine on the funding process of our
campaigns.
The DISCLOSE Act, on which we will vote today, does not amend the
Constitution. It is not going to overturn the Supreme Court decision
that equated the rights of people--I would think the tea party ought to
be excoriated over the notion that a corporation has been given the
same rights as the Constitution gives to an individual. But it does not
even overturn that. It does not even constitute campaign finance
reform. All it does is shine the disinfectant of sunlight on
corporations and faceless organizations that are trying to buy and
bully their way in Washington through campaigns run against Members who
disagree with them.
The DISCLOSE Act requires corporations, organizations, and special
interest groups to stand by their political advertising, just like any
candidate for office, and it requires the CEO of a company to identify
themselves in their advertisements. And corporations and organizations
would be required to disclose their political expenditures.
Is that asking too much, that the American people get to know who is
spending the money to influence them so that maybe they will have the
ability to judge whether there might be a little bias in that ad or
there might be a little personal interest in that ad, there might be a
reason they are getting the information they are getting, the way they
are getting it?
That is all we are asking. It is not radical. It is not prohibitive.
It simply removes the false notion that Americans are somehow
voluntarily organizing all across this country in order to pursue a
public interest. The fact is, corporate special interest money is being
compiled and targeted to pursue a special interest and to send a loud
televised message to those who disagree with them that they are going
to be punished for disagreeing. If that practice is not disclosed and
tempered, it is not only going to tip elections, it is going to
cripple--cripple--the legislative process more than it has already been
crippled in these past few years.
Instead of negotiating with each other in the public interest in the
Congress, Members of Congress find themselves asking corporations--
supposedly subject to the law and will of the American people--they ask
them whether it is OK with them whether we regulate or legislate and
release their allies to vote in favor of one thing or another. And
guess what. No surprise to the American people, those corporations
almost always refuse to do so.
So when the Citizens United decision was handed down, the voices
seeking support from these corporations argued it would have no effect
on the American political process. They said: We don't need to worry
about new funneling of funds to candidates. But the record already says
otherwise. The truth is, Karl Rove admitted that based on the Citizens
United decision, he has formed two new groups specifically, because
this decision empowered him to do it, to influence the 2010 elections
with $52 million of ads bankrolled anonymously by special interests.
Now that the Supreme Court has opened the door to these anonymous
ads, a lot of other groups are planning to spend approximately $300
million or more on the elections this fall. Already we have seen
incredible disparity. I think the total spent by these anonymous groups
attacking Democratic candidates around the country is over $30 million.
The total amount the Democrats have had available to them, because they
do not have as much money, and they do not represent those powerful
groups, is about $3 million. Seven to one is the ratio.
All you have to do is begin to analyze these ads, and you can see
exactly what the message is and why it is coming.
So here is the deal: Whether you agree with the ads or not is not
what is at issue on the floor of the Senate today. At a minimum, I
would hope our colleagues would support the idea that messages that are
sent in American politics, advertisements that are made for or against
a candidate, advertisements that are made for or against a particular
idea, that those ought to be sent openly; that they ought to be sent in
an accountable way so the American people--which is what this is all
about, this institution, this house, the Senate, the House. All of this
comes from the words ``We the People,'' and we have been hearing those
words, ``We the People'' all over America from the tea party and from
others who are trying to remind people what that is all about. This
vote is all about that today, and their outrage ought to be summoned
all across the country to shed the sunlight on this political process
and hold it accountable.
If our friends come to the floor this afternoon and vote en bloc
against it, let me tell you, that is a declarative statement about
whose interests are being protected and what is at stake in this
election as we go into this November.
The stakes for the American people are simply too high to let special
interests hide behind faceless and unidentified campaigns. I cannot
think of anything that is less American than secret money going into
campaigns to try to affect the choices of the American people.
This is an opportunity for us to truly speak for the American people,
and I hope my colleagues will join us in doing so today.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Hagan). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. KAUFMAN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KAUFMAN. Madam President, I rise to voice my support for the
DISCLOSE Act.
The DISCLOSE Act has to do with the Citizens United case, where the
Supreme Court went out of its way to overturn nearly 100 years of
statutes and settled precedent that had established the authority of
the Congress to limit the corrupting influence of corporate money in
Federal elections. It is a truly astounding decision, and it broke with
all precedent for 100 years.
The Court ruled--and this takes a little bit, and you have to suspend
your mind to get this right--that corporations are absolutely free to
spend shareholder money with the intent to promote the election or
defeat of a candidate for political office. The corporations have
freedom of speech. This is astounding.
Beyond ignoring precedent, the Court's reckless, immodest, and
activist opinion failed to distinguish between the rights of purpose-
built political advocacy corporations and profit-driven, large
corporations to direct resources to influence elections. They came in
and ruled that any corporation can spend corporate money on whatever
races they want. By issuing the broadest possible opinion, the majority
admitted of no differences between Citizens United and any major
multinational corporation.
But this decision left important questions unresolved. Who determines
what candidates the major multinational corporation supports or
opposes? Think about it. Here are corporations run by managers. We all
know the problems with boards of directors, and we have seen what has
gone on in the last years with decisions by corporations. But they
never said who in the corporation gets to make the decision. Can a
manager of the corporation or a CEO say I am going to throw $40 million
or $50 million into the political pot or should he have to go to
shareholders to get it?
[[Page S7320]]
That is a gigantic amount of money in politics, but it is a mere
pittance to a large corporation. Who determines what candidates the
major multinational corporation supports or opposes? The boards of
directors? The CEO? The employees? All these groups and individuals
serve the corporation for the benefit of the shareholders.
How will the shareholders of these corporations learn who makes these
decisions within the corporation? Even so, how are we to determine what
speech the shareholders favor? How do you do that? You are running a
corporation and you get up one morning and decide you are going to go
against candidate X or Y. Have you asked your shareholders what to do
with their money or whether they want to be against or for candidate X
or Y? How is that decision made? Do we care if the shareholders are
U.S. citizens or citizens of an economic, political, or military rival
of the United States? The way this thing rules is that a corporation
that is under the control of an economic, political, and military rival
of ours anywhere in the world can now be involved in our campaigns.
That is something we have never done before.
As it stands now, Citizens United allows corporate interests to
prevail over the rights of American citizens--that is it, pure and
simple--because they have so much in assets. A speaker in California
said that money is the mother's milk of politics. Most Americans know
that and they decry it. With this decision, it allows corporate
interests to prevail over American citizens and overwhelms the
contributions and the voices of shareholders and individuals, and it
ultimately makes elected officials even more beholden to corporations.
I tell you what, I don't have to do a survey to find out that most
Americans don't want elected officials more beholden to corporations,
and I am a corporate guy. There is nothing wrong with corporations. But
the American people don't want corporations having more control over
elected officials.
Boardroom executives must not be permitted to raid the corporate
coffers to promote personal political beliefs or to curry personal
favor with elected politicians. That result is bad for corporations,
bad for shareholders, and bad for government. We must ensure that the
corporation speaks with the voice of its shareholders, and that those
who would utilize the corporate forum to magnify their political
influence do not do so for improper personal gain or to impose the will
of a foreign power on American citizens.
Unfortunately, the Supreme Court has left us without the tools to
directly affect any of these compelling public interests. The DISCLOSE
Act cannot entirely undo the activism of the Roberts Court and shut off
the spigot of corrupting corporate funds because they say it is
unconstitutional. The Congress cannot overcome a constitutional
violation that was made by the Supreme Court. That is fundamental to
our system. But it will serve as a bulwark against the flood of
corporate money and help resolve the open questions created by the
Court in Citizens United.
The act will shine a spotlight on corporate spending and prevent
corporations from speaking anonymously by increasing disclosure and
strengthening transparency in Federal campaigns.
Transparency--if you came to the floor since Buckley v. Valeo, in
1974, the first campaign finance ruling, you would have found my
colleagues, led by their majority leader, speaking passionately about
transparency, transparency, transparency. Now we have a bill where no
one knows who is spending the money, and there is no movement on the
other side. In fact, there is a filibuster against this bill, which
would allow transparency. That is the main thing to do. It can't change
the rules because the Supreme Court says it is then constitutional. We
are trying to deal with transparency, something that has been a
hallmark--if you take a debate over the last 30 years on financing of
elections and put all of those papers up on a wall, and you throw a
dart, the chance that you would hit a Member on the other side of the
aisle talking about transparency is pretty high.
So you have to ask: Why would they be opposed to shining a spotlight
on corporate spending and prevent corporations from anonymously
increasing disclosure and increasing transparency in Federal campaigns?
Not only does the act require the corporation, organization, and
special interest groups to stand by their political advertising like a
candidate running for office--when we had McCain-Feingold, I think most
Americans liked this. If you were going to put up an ad, you would say:
I am Ted Kaufman and I approve this ad. There were a lot of jokes about
it, but you knew who paid for the ad. But they don't want to do this
with corporate money. I can go to a big corporation and start a
committee to save the world, and I can pour $35 million into it and
spend it around the country, and I never have to disclose that it is
me.
Under this act, CEOs would be required to identify themselves in
their advertisements just like political candidates, and corporations
and organizations will be required to disclose their political
expenditures.
All we are asking is, if a corporation spends $35 million on a
political race, they have to disclose that, like elected officials and
everybody else has to do now. The other thing we say is, if a
corporation is going to spend money in a race, the person in charge--
the CEO--has to say what every elected official and Federal
officeholder has had to say in recent years, since McCain-Feingold--
that ``I am Joe Brown and I support this ad.'' Disclosure is exactly
what our friends on the other side of the aisle were supporting.
Directors of public companies may still be able to hijack shareholder
money to promote their own narrow interests. But thanks to the DISCLOSE
Act, shareholders will be able to determine when they have done so.
The act will prevent foreign-controlled corporations from secretly
manipulating elections by funneling money to front groups to fund last-
minute attack ads and other anonymous election advertisements. But they
can also be 6 months in advance. Last minute is because you don't want
them to know you did an ad. They can do it 6 months before the
election, and nobody knows who did the ad.
If we fail to respond to the threat that the Citizens United decision
poses to our democracy, then I fear the public confidence in its
government will continue to erode, precisely when bold congressional
action is needed. It is not bad enough that the Congress has an
incredibly low approval rating. You vote for someone because you think
they are X, and all the time they are being supported by corporation Y.
Our ability to meet the Nation's pressing needs depends on our ability
to earn and maintain the public's trust. That is what we have all
learned and know.
How do you maintain public trust? To not get involved in this bait
and switch, where there is an organization saying one thing and it is
doing something else. Earning that trust--the trust of the American
people--will be all the more difficult in a world in which corporate
money is allowed to drown out the voice of individuals and corrupt the
political process. This is basic to our society and what we believe in.
The American people deserve much better. I think it is important that
we pass the DISCLOSE Act.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, I heard what the Senator from Delaware
said. He has been a very valuable member of the Senate Judiciary
Committee and of this body itself. We all listen to what he says. He is
not saying this out of any sense of what it might do in an election for
him, he is retiring this year. We ought to listen to somebody who has
no stake in this, other than as a citizen who cares what happens to our
democracy. I thank my friend from Delaware for speaking out, as he
always does so clearly.
We are going to try again this week to take action to help stem the
tide of corporate influence that was unleashed when, earlier this year,
five unelected Supreme Court Justices overturned 100 years of precedent
in the Citizens United decision. When we last tried to correct this
prior to the August recess. We brought up the DISCLOSE Act. Republicans
filibustered the bill. It never allowed the Senate to even debate the
legislation. Many of us argued that without even going to the
legislation, we faced real problems, and those have been borne out. We
have seen massive
[[Page S7321]]
corporate spending, drowning out the voices of hard-working Americans.
I heard somebody say in Vermont: ``Do you mean if you have somebody
who is trying to stop counterfeit goods coming from China''--or to use
another example, ``trying to stop the flood of toys that have too much
lead in them that will endanger our children--and you have a Member of
Congress who goes out and works to tighten the law so they can't do it,
are you telling me that Chinese company can set up a small corporation
here in the United States and spend a fortune to defeat the person who
is trying to protect our children, to defeat the person who is trying
to stop lead in toys? And do you mean in defeating the person who is
trying to protect our children they could do it without anybody ever
knowing where the money was coming?'' I said: That is the result of the
Citizens United decision.
They could not understand that. But I tell my fellow Vermonters, with
election day less than 2 months away, hundreds of millions of dollars
of corporate interest group funds have been spent or pledged to be
spent on political advertising and election activities. The American
people deserve better than that.
We have seen filibusters, once a rarely used part of Senate
procedure, become a regular tool for obstruction in the Senate on issue
after issue. No matter how much the American people want an issue voted
on, we end up having a filibuster blocking it. That obstruction has led
to delays in considering legislation meant to protect the American
people, as well as an alarming and almost unprecedented rise in
judicial vacancies because Republicans will not allow votes on judges.
Here, in an area fundamental to our democracy, it is clear the American
people continue paying the price unless Congress takes action.
Americans should expect bipartisan support for any legislation designed
to prevent corporations from taking over elections, corporations from
deciding elections, instead of the people who are affected by them.
This legislation does that, and I hope the Senators on the other side
will stop filibustering this legislation. I cannot help but think on
these filibusters--do you know what it is? It allows one to say: I am
going to vote maybe. We were elected and paid to vote yes or no, not
maybe. Those who keep using the filibuster to prevent a vote on serious
matters can go home and say: That matter has not come up. I have not
voted on that. I am on your side, whichever side you are on, because I
never voted. I voted maybe. That is what these filibusters are. They
are voting maybe because you do not have the courage to stand and vote
yes or no.
In Citizens United, five Supreme Court Justices cast aside a century
of law and opened the floodgates for corporations to drown out
individual voices in our elections. Five overruled every law passed by
Congress or other courts over the years. That broad scope of the
decision was unnecessary, it was improper, and it was one of the
greatest grasps for power I have ever seen. At the expense of hard-
working men and women in this country, the Supreme Court ruled that
corporations could become the predominant influence in our elections
for years to come. These unelected members of the Supreme Court said:
We are going to let corporations decide your elections, not the hard-
working men and women who are affected by the elections. We have
already seen the consequences. Corporations have injected more money
than ever into primary races and now general elections across the
country, and they can do it without ever even saying which corporation
is emptying their treasuries to do this. We need to at least have some
transparency to this new-found access.
We have heard from Americans of all political persuasions who express
overwhelming concern over the impact of the Citizens United decision,
as the threat it poses to our electoral process is readily apparent. We
have a constitutional duty to work to restore a meaningful role for all
Americans in the political process. Vote yes or vote no. Be willing to
stand on one side or the other of the issue, not a filibuster which
allows you to duck facing responsibilities as a Senator, not a
filibuster to a motion to proceed because that is a vote to ignore the
real-world impact this decision is already having on our democratic
process. I call on Senators: Have the courage to take a position. Do
not vote maybe so you can go back home and say: That issue has not come
up. Have the courage, have the honesty. Vote yes or no.
The DISCLOSE Act is a measure I support to moderate the impact of the
Citizens United decision. I will vote for it. The DISCLOSE Act will add
transparency to the campaign finance laws to help ensure corporations
cannot abuse their new-found Supreme Court-made Constitutional rights.
This legislation will preserve the voices of hard-working Americans
in the political process by limiting the ability of foreign
corporations to influence American elections. Can you imagine a proud
country such as ours, we are willing, because of the decision of five
people, to allow foreign corporations to come in and meddle in our
political process? We are going to prohibit corporations from receiving
taxpayer money when contributing to elections. Are you going to say to
the taxpayers: We are going to tax you, and then we are going to give
the money to determine who might give us more taxes? We are going to
increase disclosure requirements of corporate contributions, among
other things.
It is hard to overstate the potential for harm in the aftermath of
the Citizens United decision. The DISCLOSE Act is necessary to prevent
corruption in our political system because the Citizens United decision
brings about corruption in our political system. The DISCLOSE Act will
protect the credibility of our elections because the Citizens United
case diminishes credibility for our elections. If we do not do that, we
are not going to maintain the trust of the American people. While some
on the other side of the aisle praise 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 all Americans. That much is already clear. There is no
longer any doubt that the ability of wealthy corporations to dominate
all mediums of advertising is quieting the voices of individuals who do
not have the deep pockets and the unlimited resources of these
corporations.
Citizens United is only the latest example of which a thin majority
of the Supreme Court places its own preferences over the will of hard-
working Americans. The campaign finance reforms of the landmark McCain-
Feingold Act were the product of lengthy debate in Congress as to the
proper role of corporate money in the electoral process and passed by
bipartisan majorities.
Those laws strengthened the rights of individual voters while
carefully preserving the integrity of the political process. But with
the stroke of a pen, five Justices--unelected Justices--cast aside
those years of deliberation and substituted their own preferences over
the will of Congress and the American people.
Vermont is a state with a rich tradition of involvement in the
democratic process. We see it in March at our Town Meeting Day. But it
is also a small state, and it would take so little for a few
corporations to outspend all our local candidates--Republicans and
Democrats alike. Come on. A megacorporation could, in effect, try to
control all the government of our small state. It is easy to imagine
corporate interests flooding the airwaves with election ads and
transforming the nature of Vermont campaigning. This is not what
Vermonters expect of their politics. The DISCLOSE Act is the first step
toward ensuring Vermonters and all Americans can remain confident that
their voices are going to be heard in the political process, not an
unseen, unknown corporation with a whole lot of money.
The Citizens United decision grants corporations the same
constitutional free speech rights as individual Americans. Who could
possibly have imagined what the Framers of the Constitution would have
thought of that? Remember the opening words of our Constitution: ``We
the People of the United States . . . '' It does not say we the people
and a few megacorporations of the United States. In the Constitution,
the Founders spoke of guaranteeing fundamental rights for the American
people, not to corporations, which is
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mentioned nowhere in the Constitution. The time is now to ensure our
campaign finance laws reflect this important distinction.
The American people want their voices heard in the coming election. I
look forward to working with all Senators to pass this important
legislation to ensure the DISCLOSE Act is enacted into law. At the very
least, our constituents deserve a debate in the Senate on this
legislation. Have the courage and the honesty to vote yes or no, not to
hide behind a filibuster and get away with voting maybe. What does that
do for their constituents?
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. CASEY. Madam President, I rise to speak about the same topic
about which the senior Senator from Vermont just spoke. We are grateful
for his leadership on so many issues but especially those that involve
the Judiciary Committee, the committee of which he has been chairman.
He has been a great example. I will not try to repeat or replicate his
message but to reinforce what Senator Leahy and others have said
already in this debate.
For people who do not follow campaigns day to day or even week to
week--a lot of people are making a living and struggling through a
tough economy, so they are not always engaged in day-to-day politics.
Generally, the way it works in this country, whether it is a State such
as Pennsylvania, New York or Vermont or any State in the Union, for the
most part, with some exceptions, we have candidates who declare their
candidacy for office. They have to file paperwork. They have to fill
out ethics forms and provide other disclosures as a candidate.
Then candidates, as they are running and raising money, have to make
reports about their donors. That happens all the time in State races
and in Federal races where someone gives you a contribution of any
size, that has to be reported. Some States might have a cutoff below a
certain dollar amount.
If you are running in an election and someone gives you a
contribution of $25,000 or $100,000, people ought to know about that.
They ought to know who is funding your campaign.
Even in the Federal system, we have limits on contributions. But
while a candidate is running, they file reports that tell the voters
who is supporting them. It is a basic foundational principle of the way
we run elections.
Now we are faced with a situation, because of the Citizens United
case, where those basic rules about how candidates are influenced or
impacted by contributions, what corporations and entities do in an
election--all that is turned on its head.
Basically, what this Supreme Court decision means is, you can have a
corporate entity--I am not sure there is anyone in America who does not
think corporations already have too much influence. Let's set that
aside. They have plenty of influence in elections. Right now any
corporation at any time can spend any amount of money they want.
We do not have any information, unless the law is changed, about
their donors, who is paying for that influence, who is paying for those
advertisements. The corporate entity does not even have to identify
itself. They can call themselves the XYZ company or XYZ campaign and
come in and run ads positively or negatively, for or against,
candidates in an unlimited way. It violates the basic rule we have all
operated under, which is: Sunlight is the best disinfectant. If you
want to bring some light to the darkness, especially the darkness that
will envelop a lot of campaigns, then I guess you would be in favor of
not having a statute passed such as the DISCLOSE Act.
It is very simple. Others have gone through it, so I will not walk
through every provision, but one of the first provisions is mandating
expanded disclosure and disclaimer requirements for certain
communications by corporations, unions, and certain tax-exempt
organizations.
What is wrong with that? Why shouldn't we have that? For the most
part, we have had that for years. Now we don't have that due to the
Supreme Court decision. So we should make sure that is the law again.
Second, the legislation would require covered organizations to report
information about their donors and spending for certain independent
expenditures and electioneering communications.
Why shouldn't someone voting in 2010, or in any year, have
information about the entity that is spending the money, and especially
the donors supporting that entity. It is a free country. They can
exercise their right to free speech, but the idea that it has to be
shrouded in darkness and secrecy----
The PRESIDING OFFICER. The Senator's time has expired.
Mr. CASEY. I ask unanimous consent for 2 more minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CASEY. I thank the Chair.
And, Madam President, I ask unanimous consent to have printed in the
Record a New York Times article of September 20, 2010, entitled ``Donor
Names Remain Secret as Rules Shift.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Sept. 20, 2010]
Donor Names Remain Secret as Rules Shift
(By Michael Luo and Stephanie Strom)
Crossroads Grassroots Policy Strategies would certainly
seem to the casual observer to be a political organization:
Karl Rove, a political adviser to President George W. Bush,
helped raise money for it; the group is run by a cadre of
experienced political hands; it has spent millions of dollars
on television commercials attacking Democrats in key Senate
races across the country.
Yet the Republican operatives who created the group earlier
this year set it up as a 501(c)(4) nonprofit corporation, so
its primary purpose, by law, is not supposed to be political.
The rule of thumb, in fact, is that more than 50 percent of
a 501(c)(4)'s activities cannot be political. But that has
not stopped Crossroads and a raft of other nonprofit advocacy
groups like it--mostly on the Republican side, so far--from
becoming some of the biggest players in this year's midterm
elections, in part because of the anonymity they afford
donors, prompting outcries from campaign finance watchdogs.
The chances, however, that the flotilla of groups will draw
much legal scrutiny for their campaign activities seem slim,
because the organizations, which have been growing in
popularity as conduits for large, unrestricted donations
among both Republicans and Democrats since the 2006 election,
fall into something of a regulatory netherworld.
Neither the Internal Revenue Service, which has
jurisdiction over nonprofits, nor the Federal Election
Commission, which regulates the financing of federal races,
appears likely to examine them closely, according to campaign
finance watchdogs, lawyers who specialize in the field and
current and former federal officials.
A revamped regulatory landscape this year has elevated the
attractiveness to political operatives of groups like
Crossroads and others, organized under the auspices of
Section 501(c) of the tax code. Unlike so-called 527
political organizations, which can also accept donations of
unlimited size, 501(c) groups have the advantage of usually
not having to disclose their donors' identity.
This is arguably more important than ever after the Supreme
Court decision in the Citizens United case earlier this year
that eased restrictions on corporate spending on campaigns.
Interviews with a half-dozen campaign finance lawyers
yielded an anecdotal portrait of corporate political spending
since the Citizens United decision. They agreed that most
prominent, publicly traded companies are staying on the
sidelines.
But other companies, mostly privately held, and often small
to medium size, are jumping in, mainly on the Republican
side. Almost all of them are doing so through 501(c)
organizations, as opposed to directly sponsoring
advertisements themselves, the lawyers said.
``I can tell you from personal experience, the money's
flowing,'' said Michael E. Toner, a former Republican F.E.C.
commissioner, now in private practice at the firm Bryan Cave.
The growing popularity of the groups is making the gaps in
oversight of them increasingly worrisome among those mindful
of the influence of money on politics.
``The Supreme Court has completely lifted restrictions on
corporate spending on elections,'' said Taylor Lincoln,
research director of Public Citizen's Congress Watch, a
watchdog group. ``And 501(c) serves as a haven for these
front groups to run electioneering ads and keep their donors
completely secret.''
Almost all of the biggest players among third-party groups,
in terms of buying television time in House and Senate races
since August, have been 501(c) organizations, and their
purchases have heavily favored Republicans, according to data
from Campaign Media Analysis Group, which tracks political
advertising.
They include 501(c)(4) ``social welfare'' organizations,
like Crossroads, which has been the top spender on Senate
races, and Americans for Prosperity, another pro-Republican
group that has been the leader on the House
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side; 501(c)(5) labor unions, which have been supporting
Democrats; and 501(c)(6) trade associations, like the United
States Chamber of Commerce, which has been spending heavily
in support of Republicans.
Charities organized under Section 501(c)(3) are largely
prohibited from political activity because they offer their
donors tax deductibility.
Campaign finance watchdogs have raised the most questions
about the political activities of the ``social welfare''
organizations. The burden of monitoring such groups falls in
large part on the I.R.S. But lawyers, campaign finance
watchdogs and former I.R.S. officials say the agency has had
little incentive to police the groups because the revenue-
collecting potential is small, and because its main function
is not to oversee the integrity of elections.
The I.R.S. division with oversight of tax-exempt
organizations ``is understaffed, underfunded and operating
under a tax system designed to collect taxes, not as a
regulatory mechanism,'' said Marcus S. Owens, a lawyer who
once led that unit and now works for Caplin & Drysdale, a law
firm popular with liberals seeking to set up nonprofit
groups.
In fact, the I.R.S. is unlikely to know that some of these
groups exist until well after the election because they are
not required to seek the agency's approval until they file
their first tax forms--more than a year after they begin
activity.
``These groups are popping up like mushrooms after a rain
right now, and many of them will be out of business by late
November,'' Mr. Owens said. ``Technically, they would have
until January 2012 at the earliest to file anything with the
I.R.S. It's a farce.''
A report by the Treasury Department's inspector general for
tax administration this year revealed that the I.R.S. was not
even reviewing the required filings of 527 groups, which have
increasingly been supplanted by 501(c)(4) organizations.
Social welfare nonprofits are permitted to do an unlimited
amount of lobbying on issues related to their primary
purpose, but there are limits on campaigning for or against
specific candidates.
I.R.S. officials cautioned that what may seem like
political activity to the average lay person might not be
considered as such under the agency's legal criteria.
``Federal tax law specifically distinguishes among
activities to influence legislation through lobbying, to
support or oppose a specific candidate for election and to do
general advocacy to influence public opinion on issues,''
said Sarah Hall Ingram, commissioner of the I.R.S. division
that oversees nonprofits. As a result, rarely do
advertisements by 501(c)(4) groups explicitly call for the
election or defeat of candidates. Instead, they typically
attack their positions on issues.
Steven Law, president of Crossroads GPS, said what
distinguished the group from its sister organization,
American Crossroads, which is registered with the F.E.C. as a
political committee, was that Crossroads GPS was focused over
the longer term on advocating on ``a suite of issues that are
likely to see some sort of legislative response.'' American
Crossroads' efforts are geared toward results in this year's
elections, Mr. Law said.
Since August, however, Crossroads GPS has spent far more on
television advertising on Senate races than American
Crossroads, which must disclose its donors.
The elections commission could, theoretically, step in and
rule that groups like Crossroads GPS should register as
political committees, which would force them to disclose
their donors. But that is unlikely because of the current
make-up of the commission and the regulatory environment,
campaign finance lawyers and watchdog groups said. Four out
of six commissioners are needed to order an investigation of
a group. But the three Republican commissioners are inclined
to give these groups leeway.
Donald F. McGahn, a Republican commissioner, said the
current commission and the way the Republican members, in
particular, read the case law, gave such groups ``quite a bit
of latitude.''
Mr. CASEY. Basically, in this article we have a news organization--
among many--that is saying donor names are being kept secret. The other
problem we have, of course, is foreign nationals are coming into the
United States and spending money to influence elections. So this is not
complicated. It is very simple. Either there is going to be sunlight
and exposure about our elections and who is funding these various
elections or we are just going to have darkness. I think that injures
our ability to have free debate in a campaign, and it injures the
voter's ability to learn what they expect and should have a right to
know about candidates and about those who are influencing candidates.
Madam President, we should pass the DISCLOSE Act. At a minimum, we
should have a debate on the DISCLOSE Act.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Nebraska.
____________________