[Congressional Record Volume 158, Number 12 (Thursday, January 26, 2012)]
[Senate]
[Pages S108-S110]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            CITIZENS UNITED

  Ms. KLOBUCHAR. I am here today also to talk about something that is 
very important to the future of our democracy; that is, campaign 
finance reform and the Citizens United decision by the Supreme Court 
which had its second anniversary a few days ago.
  I see Senator Gillibrand from New York is also here to speak on this 
important issue. She is a leader. The Presiding Officer has done some 
very important work in this area as well, which I will get to in a 
minute. Most fundamentally, I am here to talk about the public lack of 
trust and our need to ensure that the American people have a government 
that is responsive to their concerns.
  It is vital that the American people have trust and confidence in 
their government. Right now it is clear they do not have either. The 
American people believe Washington is focused more on scoring political 
points for special interests and not looking out for their interests, 
for the interests of the people of this country, for the interests of 
the middle class. They have seen the preservation of oil company 
subsidies while at the same time the price of gasoline has remained 
painfully high. Simply put, they think the system is broken.
  While most people probably do not have the time to study the 
intricate details of campaign finance law, which unfortunately has 
loopholes and things written in it that make it hard to figure, the 
American people have a pretty good sense there is something wrong with 
how we conduct our elections. The American people know spending on 
campaigns has gotten out of control and that spending by special 
interest groups is contributing greatly to that problem--and they are 
right.
  The Supreme Court Citizens United decision has made it profoundly 
worse by loosening the rules on special interest spending on political 
campaigns. We are now in a situation where candidates have to report 
every single contribution they raise over a certain amount. That is 
good. But literally millions of dollars in special interest money can 
come in in attack ads, can come in and do whatever it wants, and you 
literally cannot prove who that person is who put in that money. It 
shakes the very foundation of our democracy when the people who are 
voting in these elections cannot even tell where the money is coming 
from that is paying for the ads.
  Citizens United has unleashed a new wave of special interest 
spending, and the American people have been inundated with negative ads 
on their televisions. Worse, they are constantly hearing about the 
increased role that special interests are playing in our elections, and 
that heightens their suspicions that Washington is working only for the 
powerful, only for the people who can pay for issue ads. The public 
justifiably believes the more money outside groups spend on campaigns 
the less their voices are heard. How can they have a voice when people 
are drowning out their voices with multimillions of dollars? This is a 
big problem and it is something I think we need to address.
  The President touched on this issue of money in politics in his State 
of the Union this week, and in his address last year he took on 
Citizens United directly. He knows we need change, and I agree. 
Unfortunately, the Citizens United decision makes it very difficult to 
take action legislatively. That is why I am a sponsor of a 
constitutional amendment which would allow Congress to pass laws 
regulating campaign fundraising and spending.
  Tom Udall has worked on one. I know the Presiding Officer also has a 
similar bill as well. I hope we can advance this amendment, but I 
realize it will be an uphill battle, especially as we enter an election 
year. But we must change this system. In the meantime, even before the 
election, I am hopeful we will take some steps to make it more 
transparent so at least we can start finding out who is spending this 
money--the people of Vermont or the people of New York or the people of 
Minnesota can find out who is putting in millions of dollars, and they 
can draw their own conclusions--they are pretty smart--about why they 
are spending that money.
  We need it to be transparent. We also have to stem this great abuse 
of power, this great amount of money that is coming into the system. 
But in the end we will need a constitutional amendment.
  Mrs. FEINSTEIN. Mr. President, I rise today to join my colleagues in 
marking the 2-year anniversary of the Supreme Court's decision in 
Citizens United. I want to express my support for legislation to 
reverse the harmful impact of this decision and restore accountability, 
transparency and common sense to our Nation's electoral system.
  Nearly 2 years ago, on January 21, 2010, the Roberts Court handed 
down a 5-4 decision striking down parts of the ``Bipartisan Campaign 
Reform Act.''
  That decision--Citizens United v. Federal Election Commission--flew 
in the face of nearly a century of Congressional law and overturned two 
prior rulings of the Supreme Court.
  This case is not alone.
  It is part of a pattern of decisions from the Roberts Court that have 
overturned precedent.
  I have a real concern that this Court is going out of its way to 
rewrite and reinterpret prior law with decisions, I am sorry to say, 
seem to favor corporate interests over the interests of the American 
people.
  The Citizens United decision may be the most troubling of these 
activist decisions.
  This decision does not only impact one group of people or one area of 
the law--it affects the very functioning of our elections and the 
democracy of more than 300 million Americans.
  The Court's decision in this case opened the door to unlimited 
corporate spending in Federal elections.
  Let me repeat: unlimited spending.
  The Court held that the First Amendment of the Constitution protects 
the rights of corporations to spend freely--in the millions or even the 
billions--on election ads to support or defeat a particular candidate.
  What does this mean in the real world?
  This means that an oil company like ExxonMobil--a company that earned 
$45 billion in profits last year--could spend unlimited money to 
support a candidate who supports more drilling, or to defeat a 
candidate who opposes more oil drilling.
  It means that Xe Services, formerly known as Blackwater, and other 
defense contractors could spend unlimited sums toward the election of 
candidates who view their defense positions favorably.
  Or large banks like Bank of America would be free to use their 
corporate treasury to attack candidates who favor financial regulation 
and consumer protection.
  As Fred Wertheimer of Democracy 21 testified at a Rules Committee 
hearing in 2010, ``It would not take many examples of elections where 
multimillion corporate expenditures defeat a Member of Congress before 
all Members quickly learn the lesson, vote against the corporate 
interest at stake in a piece of legislation and you run the risk of 
being hit with a multimillion-dollar corporate ad campaign to defeat 
you.''
  Is this what we want?
  Four years ago in 2008, at this same point in the presidential 
election cycle, $12.9 million was spent by super PACs in support of 
candidates.
  The fall 2010 midterm elections ushered in this new political 
landscape with outside groups spending a record $300 million on 
political advertisements and other messages. This amount represents a 
340 percent increase above 2006 spending levels.
  According to the Center for Responsive Politics, the spending by 
presidential super PACs in this year's election cycle has quadrupled 
since 2008 to an astonishing $42.5 million spent as of January 24, 
2012.
  More money is being spent than ever before.
  Do not take my word for it.
  Take a look at what is going on in the Republican Presidential 
primary. Corporations and wealthy individuals are funding these super 
PACs and spending vast amounts of money to attack candidates.
  My concerns with these dramatic increases in spending are heightened 
by a

[[Page S109]]

recent finding from the Center for Responsive Politics that 
approximately 44 percent of the outside spending in 2010 came from 
anonymous sources.
  The Roberts Court's decision in Citizens United was, I believe, the 
wrong one.
  It protects corporate free speech and will drown out an individuals' 
free speech. It has threatened to put democratic elections in the 
United States up for sale to the highest bidder. And it will, I 
believe, lead to voters having less reliable information about 
candidates, not more.
  The Court gets the final word on the Constitution, and it has spoken.
  However, Congress should pass the DISCLOSE Act or Senator Tom Udall's 
campaign finance constitutional amendment.
  I supported the DISCLOSE Act in the last Congress because I believe 
it is a critical step forward, but the bill was narrowly defeated on a 
cloture vote of 59-39 in September of 2010.
  Given what we have seen in the Republican primaries this year, I 
think this body must try again to pass the DISCLOSE Act. In 2010, we 
came close to passing it and needed just one additional yea vote to 
move the bill forward.
  The DISCLOSE Act ensures the American public knows who is funding an 
ad when they see it on television, and it will close loopholes that 
could have otherwise allowed unlimited spending in our elections by 
foreign nationals and corporations receiving government assistance.
  I understand that Senator Schumer is working to reintroduce this 
legislation, and I fully support him in this effort.
  Senator Udall's resolution to amend the Constitution would authorize 
Congress to regulate the raising and spending of money for federal 
campaigns, including the independent spending of super PACs.
  This resolution is a critical step to ensure that corporate dollars 
will not flow in the dark to one candidate and against another, but, 
instead, our election process will regain the transparency it has lost 
after Citizens United.
  I believe it is essential that we pass legislation to address this 
growing problem, and I look forward to working with my colleagues to do 
so.
  Mr. LEAHY. Mr. President, two years ago, with the stroke of a pen, 
five Supreme Court justices acted in a case known as Citizens United to 
overturn a century of law designed to protect our elections from 
corporate spending. They ran roughshod over longstanding precedent to 
strike down key provisions of our bipartisan campaign finance laws, and 
ruled that corporations are no longer prohibited from direct spending 
in political campaigns. I was troubled at the time and remain troubled 
today that in that case, the Supreme Court extended to corporations the 
same First Amendment rights in the political process that are 
guaranteed by the Constitution to individual Americans.
  Now, 2 years later, the American people have seen the sudden and 
dramatic effects of the Citizens United decision. The flood of 
corporate money flowing into campaigns from undisclosed and 
unaccountable sources has had an enormous influence in the Republican 
primary elections this year, just as it did in the 2010 mid-term 
elections. Instead of hearing the voices of voters, we see a barrage of 
negative advertisements from so-called Super PACs. This comes as no 
surprise to the many of us in Congress and around the country who 
worried at the time of the Citizens United decision that it turns the 
idea of government of, by and for the people on its head. We worried 
that the decision created new rights for Wall Street at the expense of 
the people on Main Street. We worried that powerful corporate 
megaphones would drown out the voices and interests of individual 
Americans. Two years later, it is clear those concerns were justified.
  We held a hearing in the Senate Judiciary Committee last year to 
explore how the Citizens United decision affects the lives of 
hardworking Americans. I began that hearing by talking about how our 
Constitution starts with the words, ``We the People of the United 
States.'' In designing the Constitution, ratifying it, adopting the 
Bill of Rights and creating our democracy, we spoke of, thought of, and 
guaranteed, fundamental rights to the American people, not 
corporations.
  There are reasons for that. Corporations are not the same as 
individual Americans. Corporations do not have the same rights, the 
same morals or the same interests. Corporations cannot vote in our 
democracy. They are artificial legal constructs to facilitate business. 
The Founders understood this. Americans across the country have long 
understood this.
  Corporations are not people. That is common sense rooted in core 
American values. Nowhere does our Constitution mention corporations. 
The great Chief Justice John Marshall understood this distinction when 
he wrote in 1819 that, ``A corporation is an artificial being . . . the 
mere creature of law, it possesses only those properties which the 
charter of its creation confers upon it. . . .''
  The distinction between corporations and people is one that was at 
the heart of the campaign finance reforms proposed by Teddy Roosevelt 
more than a century ago limiting the role of corporations in the 
political process. Those reforms were preserved and extended through 
another century of legal developments that followed. Nine years ago, it 
was these same values that informed bipartisan efforts in Congress, on 
behalf of the American people, to enact the landmark McCain-Feingold 
Act. That legislation strengthened the laws protecting the interests of 
all Americans by ensuring a fair electoral process where individual 
Americans could have a role in the political process, regardless of 
wealth.
  As I pointed out at our hearing last year, when the Supreme Court 
first reviewed the constitutionality of the McCain-Feingold Act in 
2003, in McConnell v. Federal Election Commission, it upheld the key 
provisions of the Act against a First Amendment challenge. Six years 
later, a thin majority of the Supreme Court, made possible by President 
Bush's appointment of Justice Samuel Alito, reversed course on the very 
same question. In so doing, the conservative activist majority 
discarded not only the McConnell decision, but ignored longstanding 
precedent to effectively redraft our campaign finance laws. As Justice 
Stevens noted in dissent: ``The only relevant thing that has changed 
since . . . McConnell is the composition of the Court.'' The 
Constitution had not changed, but five Justices rewrote it.
  The reason so many Americans continue to recoil from the Citizens 
United decision 2 years later is that the brand of conservative 
judicial activism on display in that decision is a threat to the rule 
of law and an effective representative democracy. At the core of the 
First Amendment is the right of individual Americans to participate in 
the political process to speak and, crucially, to be heard. That is 
what the campaign finance laws were designed to ensure--that Americans 
can be heard and fairly participate in elections. Rather than abiding 
by the limitations that Congress has developed to ensure a multitude of 
voices in the marketplace of election contests, five justices on the 
Supreme Court decided that the biggest corporations should be 
unleashed, and can be the loudest and most dominant, and drown out 
individual Americans. They showed no deference to Congress, and little 
deference to the precedents of the Supreme Court.
  The risks we feared at the time of the Citizens United decision, the 
risks that drove Congress to pass bipartisan laws based on longstanding 
precedent, have been apparent in the elections since that decision. 
Citizens United has opened the floodgates of corporate influence in 
American elections. In these tough economic times, I believe individual 
Americans should not have their voices stifled by unfettered corporate 
interests. I remain concerned that this decision will invite foreign 
corporate influence into our elections.
  Recently, Justice Scalia responded to the criticism of the Citizens 
United decision and the advent of Super PACs and their overwhelming 
influence by saying that if people do not like it, they should turn off 
their televisions. That response misses the point. Americans should not 
be told to tune out from democracy or from considering a fair exchange 
of ideas. American voters should be able to speak, be heard and to hear 
competing voices, not be overwhelmed by corporate influence and

[[Page S110]]

driven out of the governing process. Even some whose response to the 
Citizens United decision was more muted have turned a corner, and 
recently, Senator McCain, a lead co-author of the McCain-Feingold Act, 
conceded that Super PACs are ``disgraceful.'' They allow nothing more 
than to have corporations or wealthy individuals dominate and control 
local elections.
  We have tried to curtail some of the worst abuses allowed by the 
Supreme Court's decision, but Senate Republicans have blocked those 
efforts. In 2010, Senate Republicans filibustered the DISCLOSE Act, 
preventing the Senate from even debating the measure, let alone having 
an up-or-down vote in the Senate. The DISCLOSE Act would have added 
transparency to the campaign finance laws to help prevent corporations 
from abusing their newfound constitutional rights. It would have 
preserved the voices of hardworking Americans in the political process 
by limiting the ability of foreign corporations to influence American 
elections, prohibiting corporations receiving taxpayer money from 
contributing to elections, and increasing disclosure requirements on 
corporate contributors, among other things.
  By preventing us from even debating the DISCLOSE Act, Senate 
Republicans ensured the ability of wealthy corporations to dominate all 
mediums of advertising and out the voices of individuals, as we have 
seen and will continue to see in our elections.
  We continue to try to fight the effects of corporate influence 
unleashed by Citizens United. We have introduced the Fair Elections Now 
Act, to establish a voluntary program for viable congressional 
candidates to accept Federal grants, matching funds, and vouchers to 
supplement money from small dollar donors. Rather than fundraising, 
this legislation will enable incumbent candidates more time to better 
represent their constituents, and it will level the playing field to 
give challengers the chance to better compete with established 
candidates without relying on wealthy donors to fund their entire 
campaign. The Fair Elections Now Act represents one important step 
toward minimizing corporate influence in the electoral process, and 
ensuring that candidates for Congress are neither beholden to corporate 
influence, nor so consumed with fundraising that they do not have the 
time necessary to legislate. I hope that Senators on both sides of the 
aisle will work to enact this important measure.
  We continue to work to protect shareholders of publicly held 
corporations from having their money spent on political activity 
without their consent, another consequence of the Citizens United 
decision. I am a cosponsor of the Shareholder Protection Act, which 
would require shareholder authorization and full disclosure of any 
political spending by publicly held corporations. Last week, I joined 
with 14 other Democratic Senators in sending a letter to the Securities 
and Exchange Commission, SEC, urging it to consider using its authority 
to immediately implement part of this legislation requiring full 
disclosure of corporate political spending. Such an action is within 
the SEC's power to do today. This information is not only material to 
shareholders, but it is something shareholders continue to request from 
corporations. As we wrote last week, a corporation's money belongs to 
the shareholders, not the executives, and they deserve a voice in how 
it is spent.
  Vermont is a small State. It is easy to imagine the wave of corporate 
money we are seeing spent on elections around the country lead to 
corporate interests flooding the airwaves with election ads, and 
transforming even local elections there or in other small States. It 
would not take more than a tiny fraction of corporate money to outspend 
all of our local candidates combined. If a local city council or zoning 
board is considering an issue of corporate interest, why would the 
corporate interests not try to drown out the view of Vermont's 
hardworking citizens? I know that the people of Vermont, like all 
Americans, take seriously their civic duty to choose wisely on Election 
Day. Vermonters cherish their critical role in the democratic process 
and are staunch believers in the First Amendment. Vermont refused to 
ratify the Constitution until the adoption of the Bill of Rights in 
1791. The rights of Vermonters and all Americans to speak to each other 
and to be heard should not be undercut by corporate spending.
  When the Citizens United decision was handed down, I said that it was 
the most partisan decision since Bush v. Gore. As in Bush v. Gore, the 
conservative activists on the Supreme Court unnecessarily went beyond 
the proper judicial role to substitute their preferences for the law. 
But Citizens United is broader and more damaging, because rather than 
intervening to decide a single election, we have seen the Court's 
intervention affecting all elections. On the 2 year anniversary of 
Citizens United, I call on all Senators, Republican or Democratic, to 
come together to restore the ability of every American to be heard and 
participate in free and fair elections.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. Mr. President, I ask to speak as in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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