[Congressional Record Volume 159, Number 27 (Tuesday, February 26, 2013)]
[House]
[Pages H631-H632]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 CITIZENS UNITED DECISION DEEPLY FLAWED

  The SPEAKER pro tempore. The Chair recognizes the gentleman from 
California (Mr. Schiff) for 5 minutes.
  Mr. SCHIFF. Late last year, the Supreme Court overturned a century-
old Montana law that prohibited corporate spending in that State's 
elections. In the Montana case, the Supreme Court had the chance to 
revisit its deeply flawed 2010 decision in Citizens United. But despite 
the urgings of members of the Court itself and a public shell-shocked 
by the recent torrent of unregulated corporate expenditures, the Court 
chose instead to double down and reaffirm the conclusion of Citizens 
United that corporations are people--at least as far as the First 
Amendment is concerned.
  As a legal decision, the Citizens United opinion was remarkable in 
many ways: in its willingness to overturn a century of jurisprudence, 
in its choice to issue as broad a ruling as possible rather than as 
narrow as the case and the Constitution required, and in its reliance 
on minority or concurring views in prior decisions rather than the 
prevailing opinions in those same cases. As Justice Stevens pointed out 
in a striking dissent, nothing had really changed since prior 
controlling case law except the composition of the Court itself. So 
much for stare decisis.
  But what stood out most about Citizens United was not the Court's 
legal reasoning, but its staggering naivete, as the Court confidently 
declared:

       We now conclude that independent expenditures, including 
     those made by corporations, do not give rise to corruption or 
     the appearance of corruption.

  Unfortunately, the five Justices who joined this opinion must be the 
last five Americans to feel that way. Certainly none of the evidence 
before the Court in Citizens United or the Montana case compelled a 
conclusion so at odds with reality.
  To be fair to the present Court, they did not invent the distinction 
between direct contributions, which can be regulated, and independent 
expenditures, which may not. That flawed distinction goes back more 
than 35 years to Buckley v. Valeo, where the Court attempted to place 
limits on both forms of campaign spending. In Buckley, the Court felt 
that there was a compelling State interest in regulating contributions 
to candidates but that there was not yet sufficient evidence of a 
similarly compelling need to regulate independent expenditures, but the 
Court acknowledged the need to revisit that conclusion in the future if 
events should prove otherwise.
  Events have most certainly proved otherwise following Citizens 
United. Since that decision, corporate expenditures have reached in the 
billions of dollars, and the ``independence'' of those expenditures--
their theoretical separation from the officeholders they are intended 
to influence--is a fiction no one buys anymore. The proliferation of 
super PACs and their outsized influenced on House, Senate, and 
Presidential politics is beyond dispute by all except those five 
Americans who happen to sit on the Court.
  But if the Montana case makes anything clear, it is that the Court 
has dug in. No amount of unrestrained spending, no appearance of 
impropriety or actual corruption of our system is likely to dislodge 
this newly entrenched precedent from the threat it poses to our 
democracy. Regrettably, a constitutional amendment is required for 
that.
  Fortunately, one of the Nation's preeminent constitutional scholars, 
Harvard law professor Lawrence Tribe, has drafted one, which I have 
introduced as H. Res. 31. It provides simply:

       Nothing in this Constitution shall be construed to forbid 
     the Congress or the States from imposing content-neutral 
     limitations on private campaign contributions or independent 
     election expenditures.

  The amendment also allows, but does not require, public financing of 
campaigns when States choose to enact such laws, providing:


[[Page H632]]


       Nor shall this Constitution prevent Congress or the States 
     from enacting systems of public campaign financing, including 
     those designed to restrict the influence of private wealth by 
     offsetting campaign spending or independent expenditures with 
     increased public funding.

  The tidal wave of independent expenditures creates an unmistakable 
appearance of impropriety, and over time it cannot help but corrupt. 
The Court having failed to bear witness to these debilitating changes 
since Buckley, the people have the power to act. Independent 
expenditures, like direct contributions, should be subject to 
reasonable limits and should be transparent. And corporations are not 
people; for if they were, as Justice Stevens points out, how could we 
deprive them of the right to vote?

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