[Congressional Record Volume 156, Number 148 (Monday, November 15, 2010)]
[Senate]
[Pages S7873-S7875]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LAMEDUCK SESSION
Mr. SPECTER. Mr. President, I have sought recognition to discuss the
activities of the so-called lameduck session we are about to enter. I
begin by suggesting that our session does not necessarily have to be a
lameduck. We have the capacity to respond to the many pressing problems
of the country as we choose. We can spread our wings and we can fly.
One could say at many points during the course of the 111th Congress,
the session could be called a turkey. It has not been very active in
many respects. This body, not atypical, has been expert at avoiding
tough votes. Well, if there is any time where it is easiest to avoid
tough votes, it is a long distance from the next election, and we can't
get any further from the next election than today, since the last
election was only 13 days ago.
It is my suggestion that this would be a good time to undertake some
significant action. The country is in a tremendous state of turmoil
politically, I think more so than at any time in the country's history,
certainly more than at any time during my tenure in the Senate; I think
beyond that, at any time in the history of the country with the
exception of the Civil War period. We have seen candidates run on a
platform of ``I won't compromise.''
This is a political body. The art of politics is compromise and
accommodation. I suggest there are some real lessons we all learned 13
days ago from the election which we ought to put into effect now and
take some action and some decisive action. I suggest a good place to
start would be the enactment of the so-called DISCLOSE Act. That is the
legislation which would, at a minimum, require the identity of
contributors be known to the public so their motivations can be
evaluated.
Campaign finance reform followed the massive cash contributions going
back to the 1972 elections, and the Congress passed reform legislation
in 1974. Then, in a landmark decision, Buckley v. Valeo, in 1976, key
parts of that legislation were declared unconstitutional. Freedom of
speech under the first amendment was equated with money. I agree with
Justice Stevens that that was a classic mistake; that the principle of
one person one vote is vitiated by allowing the powerful, the rich to
have such a large megaphone that it drowns out virtually everybody
else.
There have been a series of legislative enactments to try to overcome
the restrictions of Buckley v. Valeo and a corresponding series of
Supreme Court decisions broadening the field of freedom of speech,
until we got to the case of Citizens United. Then, upsetting 100 years
of precedent, the Supreme Court decided corporations and unions could
advertise in political campaigns and, in conjunction with other
loopholes in the campaign law, it was possible those contributions
could be made secretly. When the bill was called for a motion to
proceed, as we all know, it fell short of the 60 votes necessary to cut
off debate or to impose cloture. Fifty-nine Senators voted aye that we
wanted to proceed, 57 Democrats and 2 Independents and all 41
Republicans voted no.
I ask unanimous consent to have printed in the Record at the
conclusion of my remarks an article by Richard Polman in the
Philadelphia Enquirer and an editorial from the New York Times on the
DISCLOSE Act.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 1.)
Mr. SPECTER. The Polman article recites a number of Senators who
voted no against proceeding with the DISCLOSE Act, having made in the
past very forceful affirmative statements in favor of disclosure. It
may be that by reminding those 4 Senators, perhaps 1 of them or 2 of
them--we only need 1, if the 59 votes hold--they could be persuaded to
vote aye and proceed to consider the bill. Then we have the advocates
of McCain-Feingold. If we compare the rollcall vote on McCain-Feingold,
we find there are a number of Senators who voted no against taking up
the DISCLOSE Act, Senators who previously had spoken out forcefully in
favor of finance limitations and in favor of transparency. Perhaps at
least one of those or perhaps even more could be persuaded to vote to
proceed with the so-called DISCLOSE Act.
There has been a plethora of political commentary about the dangers
to our political system by having anonymous campaign contributions. The
last election was inundated with money, and the forecasts are that the
next election will be even more decisively controlled by these large
contributions and by these anonymous contributions. So to preserve our
democracy and to preserve the power of the individual contrasted with
the power of the wealthy, I believe that ought to be very high on our
agenda.
There is a corollary to the need for some change, some reform as a
result of what happened in Citizens United. In that case, we had two
votes, and they were decisive. To make the five-person majority, two
votes totally reversed the positions which those Justices had taken not
too long ago during their confirmation proceedings. Chief Justice
Roberts was emphatic in his confirmation proceeding that he was not
going to jolt the system, that he would have respect for stare decisis,
and that he would have respect for congressional findings. So was
Justice Alito on both those accounts. In their confirmation hearings,
the testimony of both was explicit in the statement that it was a
legislative function to find the facts, and it was not a judicial
function to find the facts. When Citizens United came down, as the
dissenting opinion by Justice Stevens pointed out, a voluminous factual
record showing the dangers and the potential dangers of excessive
contributions was on the record.
All that was ignored in the decision in Citizens United and was
ignored by
[[Page S7874]]
the commitment which those two Justices made in their confirmation
hearings not too many years before.
The best approach in dealing with this issue is to have the public
understand what is going on in the Court. It is my view and the view of
many other Senators that we are long past the time when the Court ought
to be televised so the public would understand what has been going on.
On repeated occasions, the Judiciary Committee has voted out
legislation requiring the Supreme Court to be televised. It is an
appropriate legislative function to impose that requirement. It is up
to the Congress to decide administrative matters. For example, the
Congress decides when the Supreme Court will convene. It is on the
first Monday of October in each year. The Congress decides how many
Justices it takes to have a quorum--six--to transact the business of
the Court. It is the Congress which decides how many Justices there
will be on the Court, and the Congress has set the number at nine. It
is recalled that an effort was made during the Roosevelt administration
to so-called pack the Court by raising the number to 15. The Congress
could have done that. It would have been unwise, but the Congress has
the power. The Congress decides what cases the Court will hear. For
example, mandating that McCain-Feingold be reviewed by the Supreme
Court so the Court's customary discretionary decision on granting
certiorari or not can be overcome by the Congress. I suggest it is time
that transparency and understanding by the public should come into
operation. Justice Brandeis was an eloquent spokesman for sunlight
being the best disinfectant. It has been said repeatedly that the
Supreme Court follows the election returns. The Supreme Court follows
the values of our society in a changing country, which has eliminated
segregation, changed the rules with respect to sexual preferences,
changed the rules many times.
The best way to accomplish that would be to take up this issue, which
we could take up in this session--this session before the end of the
year--something I have discussed with the majority leader, something I
have discussed with the leadership of the House, and we could handle
this in relatively short order.
There is another matter which I suggest we ought to take up and
conclude, and that is the issue of the START Treaty. President Reagan
set the standard of ``trust but verify,'' but since the end of 2009,
when the last treaty expired, we have been unable to verify what the
Russians are doing.
The START Treaty also provides for beyond verification, provides for
arms reduction, which is something which ought to be done. There is no
reason to have these vast arsenals. They can be reduced and it would be
much less expensive in an era when we are very much concerned about
governmental costs.
The 1992 START Treaty, negotiated by President Reagan and by
President George H. W. Bush, passed the Senate 93 to 6. The 2003 Moscow
Treaty on arms control, negotiated by President George W. Bush, passed
95 to 0. So that is a subject which ought to be taken up and ought to
be acted upon, notwithstanding the objection of a small number of
individuals. We ought to take that up on the merits and vote it up or
down. I am sure it would be ratified.
The issue of don't ask, don't tell is another matter which ought to
be concluded before the end of the year. We know what has resulted from
the study ordered by the Department of Defense. Some say we ought to
know more than we know at the present time. Well, we have considered
don't ask, don't tell for more than a decade, and I think it is
palpably plain that the time for the current standards has long since
run and it ought to come to a vote. To tie up the Department of Defense
authorization bill on that subject--a bill which has been passed year
after year after year, going back decades--it is something which ought
to be enacted by this Congress.
I suggest further that we ought to take up unemployment compensation
very promptly. We have millions who are unemployed and an unemployment
rate of 9.5 percent nationally. There are people who are actively
seeking jobs who cannot find them. That ought to be a priority item,
certainly to be accomplished during this session.
There is one other item which I think we ought to act on; that is, to
authorize Federal funding for research on embryonic stem cells. That
legislation has twice been passed, first under the name Specter-Harkin
and later, when the majority changed, to Harkin-Specter. We should have
enacted it earlier. We have relied upon an Executive order promulgated
by President Obama to authorize Federal funding, and then in a surprise
decision the United States District Court for the District of Columbia
ruled that the Executive order violated the existing statute.
Well, it is not a constitutional issue. The Congress can change that.
The order has been appealed to the Court of Appeals for the District of
Columbia Circuit, and the order has been stayed, which means at the
present time research can proceed with Federal funding. But it is a
very uncertain matter. As testified to by Dr. Collins, the Director of
the National Institutes of Health, the scientists who are working under
NIH grants are very much in doubt as to what is going to happen. There
is some $200 million and more than 200 projects which hang in the
balance. On embryonic stem cell research we are dealing with a life-
and-death situation, and there ought not to be hesitancy or doubt in
the minds of those scientists.
The objection has been raised that these embryos could produce life.
Well, if there were any chance that would happen I think no one would
be in favor of using them for scientific research. But the fact is,
there are some 400,000 of these embryos frozen, and they are not being
used to produce life.
Back in 2002, when I chaired the Appropriations Subcommittee on
Health, I took the lead in Federal funding to assist individuals who
wanted to adopt these embryos to have them produce life. Some $9
million has been appropriated in the intervening years, but only 242 of
these embryos have been adopted to produce life. Meanwhile, in 2008,
the most recent year for which statistics are available, more than a
million people died from heart disease and cancer.
We have the capacity, the opportunity, through these embryos, which
replace diseased cells, to deal with stroke, to deal with heart
disease, perhaps to deal with cancer. We do not know. But there is much
that can be done, and Congress has the authority to clarify the
situation. It could take years pending in the Court of Appeals for the
District of Columbia, with the time for briefing and argument and
decision, and possible appeal to the Supreme Court of the United
States. But it is a matter that Congress can act on, and twice we have
already acted, and both times vetoes were successfully handed down by
President George W. Bush.
So there is much we can do during this session of Congress if we make
up our minds to do it.
One other lesson which we have seen from the current election is the
tremendous power which has been exercised by the extremities of both
political parties, and we have seen this in recent years. We have seen
an excellent Senator such as Senator Joseph Lieberman who cannot win a
Democratic primary, and we have seen an excellent Senator such as Bob
Bennett, with a 93-percent conservative rating, who cannot survive the
nomination process in Utah. Those are only a couple of cases. Many more
could be cited.
But we have also seen that when the voters are informed and the
voters are aroused that we are still a country which has a constituency
which desires to be governed from the center, not on either extreme,
and the primary elections bring out those on one side or the other.
But we have the situation with Senator Lisa Murkowski which
demonstrates the point that there is still a dominant voice in the
center. Senator Murkowski lost her primary election, illustrative of
the principle I mentioned a few moments ago about the primaries being
dominated by the extremes. But then, in a spectacular write-in
campaign, it now appears Senator Murkowski will be reelected--the first
time that has happened since Senator Thurmond won on a write-in
campaign in the 1950s, and that is a pretty tough proposition. You have
to have the spelling right. ``Murkowski'' is not the easiest name in
the world to spell, notwithstanding the fact that it has
[[Page S7875]]
been popularized not only in Alaska by her distinguished father--
elected at the same time I and others were elected to this body--and it
is not certain but it looks pretty likely that Senator Murkowski will
be remaining in the U.S. Senate.
So when the electorate understands what the issue is--and there was
so much publicity that the electorate did--and when they are aroused
and motivated to action, I think it is very strong evidence that
America, illustrated by Alaska, wants to be governed from the center.
So I think that is something that ought to be noted by this Congress in
the last 45 days of this year as we look over a tremendous number of
very important issues.
I have not covered the entire range of issues which we ought to
consider, but I think I have covered some which ought to be handled by
this session of the Congress and that the duck ought to spread its
wings, show it is not lame, and get something done to operate in the
interests of the American people.
I thank the Acting President pro tempore and yield the floor.
Exhibit 1
[From the Philadelphia Inquirer, Oct. 31, 2010]
The American Debate: Secret Donors vs. Democracy
(By Dick Polman)
Can we all agree that secret money in politics is a bad
thing?
OK, you're with me. So far, so good.
And can we all agree that the Republicans have been
hypocrites on this issue--having long declared that they were
against secret money, only to flip-flop in 2010 and declare
that they were for it?
OK, now I've probably lost half of you. But bear with me.
Thanks to a number of factors--a historic Supreme Court
decision that has inspired wealthy donors to pony up, a tax
code riddled with loopholes, and toothless federal
watchdogs--a record amount of secret money, topping $250
million, is flooding the Senate and House races. We have no
idea who these donors are, yet we've all seen their handiwork
in TV ads. From the shadows, they create front groups with
vacuously pleasing names--something like Concerned Citizens
for the Betterment of Mankind, or Americans for Puppies,
Apple Pie, and the Fourth of July.
By the way, even though it's true that the Republicans have
trumped the Democrats in the secret-money race by more than
2-1, I don't mean to imply that the GOP is poised to win big
Tuesday night simply because its anonymous donors wrote big
checks. Nancy Pelosi may think so--the House speaker recently
said, ``Everything was going great, and all of a sudden
secret money from God knows where, because they won't
disclose it, is pouring in''--but she is wrong. Long before
the GOP's richest fans ever got involved, hardly anything was
``going great'' for the Democrats.
But the secrecy, in itself, is an affront to democracy and
the principle of transparency. People give big money for a
reason; we may never know what they got in return. We have
essentially legalized the practice of backstage bribery, and
2010 is a mere tune-up for the presidential race in 2012.
Last winter, after the U.S. Supreme Court freed up
corporations, unions, and other special interests to spend
campaign money more easily, rich people felt more emboldened
to finance the GOP's efforts. But they didn't want the public
to know who they were. So, a few intrepid Republican
strategists, including Karl Rove, came up with a clever fix.
They created nonprofit groups under a section of the tax code
reserved for ``social welfare organizations'' that allows
donors to fork over unlimited money without being publicly
named. And the secret money has flowed unabated ever since.
So you might be wondering, ``Doesn't the public have a
right to know who these donors are? How come Congress hasn't
done something about this?'' Well, guess what? Congress has
tried. In the spring and summer, the ruling Democrats sought
to pass the Democracy Is Strengthened by Casting Light on
Spending in Elections Act (which proves that Democrats will
never work on Madison Avenue). Known commonly by its acronym,
the DISCLOSE Act, it would essentially force these donors
into the open. It passed in the House--with virtually all
Republicans voting no. It went to the Senate, where it
lingers today because Republicans won't let it come up for a
vote.
I warned you that I would bring up the Republicans'
hypocrisy, defined here as the chasm between what they once
professed to believe and what they now practice.
Back in the days when Republicans were strongly opposed to
campaign-finance reform (this was a decade ago, when John
McCain was mavericky in his efforts to curb big money in
politics), they insisted that full disclosure was the best
solution, that as long as the voters could see who's giving
the big money, voting decisions could be made on that basis
and democracy would be alive and well.
So said George W. Bush, for instance, when he first ran for
president in 2000. But let's go down the list.
Here was Sen. Mitch McConnell, the chamber's current GOP
leader, during a 2000 appearance on Meet the Press:
``Republicans are in favor of disclosure.'' That year, he
also said that ``the major political players in America''
should be subject to disclosure; in his words, ``Why would a
little disclosure be better than a lot of disclosure?'
Here was Lamar Alexander, now a Tennessee senator but
speaking as a presidential candidate in 1999: ``I support . .
. 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.''
Here was Texas Sen. John Cornyn's philosophical stance just
six months ago: ``I think the system needs more transparency,
so people can reach their own conclusions.''
Here was Alabama Sen. Jeff Sessions, just six months ago:
``I don't like it when a large source of money is out there
funding ads and is unaccountable . . . I tend to favor
disclosure.''
Al four have been blocking the DISCLOSE Act. Meanwhile, on
the House side, GOP leader John Boehner said in 2007, ``We
ought to have full disclosure, full disclosure of all of the
money that we raise and how it is spent. And I think that
sunlight is the best disinfectant.'' But when the DISCLOSE
Act came up in the House this year, Boehner voted for
darkness.
Actually, Rove's group, American Crossroads, has engineered
the best flip-flop. It was launched this year as a full-
disclosure enterprise; one of its board members, ex-GOP
national chairman Mike Duncan, said in May, ``I'm a proponent
of lots of money in politics and full disclosure in
politics''--the traditional GOP position. He voiced his
support for ``full accountability.'' But when the potential
big donors voiced their distaste for sunlight, the Crossroads
gang deep-sixed its disclosure talk and created an offshoot
in the aforementioned secrecy section of the tax code. That
got the bucks flowing.
And don't expect the feds to police this behavior. Under
the tax code, these social-welfare organizations are
supposedly barred from spending more than half their money on
politics. But the Federal Elections Commission has a well-
deserved reputation for allowing political operatives to play
fast and loose with the rules. Indeed, the FEC is set up for
stalemate; even if its three Democratic commissioners wanted
to move against secret money, its three Republican
counterparts would likely block the move.
All told, if sunlight is indeed the best disinfectant (as
Boehner once believed, when he borrowed the phrase from
Justice Louis Brandeis), then I suppose we must now gird
ourselves indefinitely for the toxins that flourish in the
dark.
____
[From the New York Times, Nov. 4, 2010]
Campaign Money To Burn
After Tuesday's vote, there is no limit to the ambitions of
stealth political groups bankrolled by anonymous check
writers. Two of the flushest pro-Republican operations,
American Crossroads and Crossroads GPS, plan to extend their
campaigning into the lame-duck session of Congress with waves
of misinformation about tax and immigration issues.
The moment could not be more pressing far lame-duck
senators to revisit--and pass--the ``Disclose Act.'' It has
been approved by the House and would mandate that the public
at least be told which deep-pocketed corporate and union
donors are politicking from the underbrush. The measure
failed by one vote in a September filibuster by Republicans.
The Democratic majority needs just a few Republicans to
break party lock step and stand up for politicking in the
sunshine. Republicans who once made disclosure their mantra
(as an alternative to robust limits on contributions) are
predictably backing away.
One Republican newcomer, Senator-elect Mark Kirk of
Illinois, did offer a ringing endorsement of disclosure in
the campaign. Asked in a debate about the $1.1 million in
advertising support that he received from Karl Rove's
Crossroads GPS, Mr. Kirk firmly insisted special-interest
groups writing campaign checks ``should reveal their donors
and be fully transparent.''
And after winning a special election for President Obama's
former Senate seat, he will be eligible in the lame-duck
session. He can deliver for his voters, and make his mark
early, by supporting the Disclose Act.
The so-called Republican moderates--Olympia Snowe and Susan
Collins of Maine and Scott Brown of Massachusetts--have been
critical of what seem to be peripheral details. If it takes a
stripped-down version to win enactment of true disclosure,
that is worth pursuing.
The Democratic majority leader, Harry Reid, back from the
brink of defeat in an election rife with murky check writers,
needs to push hard and be ready to deal. The lame-duck
session offers the last realistic chance for a donor
disclosure law before secretive organizations up the ante and
mayhem for the 2012 presidential campaign.
The ACTING PRESIDENT pro tempore. The Senator from North Dakota.
____________________