[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
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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
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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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