[Congressional Record Volume 160, Number 128 (Tuesday, September 9, 2014)]
[Senate]
[Pages S5409-S5426]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ISIL
Mr. KAINE. Mr. President, 1 month ago the President initiated an air
campaign against ISIL in Iraq. ISIL is a dangerous terrorist
organization committing atrocities against thousands of people,
including American hostages, and a strong American response, to include
military action, is certainly warranted.
In the first month of this air campaign, two explanations for the
mission were given by the President. We began with a mission for
humanitarian purpose and also the need to protect American embassy
personnel. Since that time, the White House has stated that the air
strikes may go on for some open-ended period of time. Despite a pledge
not to place American boots on the ground, more American military
personnel have been deployed to Iraq as advisers and are on the ground
there now.
In order to clarify what is at stake and set out a path forward, many
of my colleagues and I have called for the President to bring before
Congress and the Nation a clear plan for defeating ISIL. I am gratified
that the President will address the Nation on this topic tomorrow
night.
I am supportive generally of the limited and prudent steps taken thus
far, while Congress was in recess, to slow ISIL's momentum. I expect to
hear a comprehensive strategy tomorrow.
I support the strong U.S. diplomatic push that has forced Iraqi
government formation, and I am pleased with Iraqi political
developments to form a unity government. Now Iraqi leaders must govern
inclusively.
I am especially heartened by reports that the administration has
worked to find a number of nations willing to partner with America to
deal with the ISIL threat, including nations in the region. The United
States cannot be a police force for a region unwilling to police
itself. The United States should not bear the sole burden of defeating
a terrorist organization that poses a more imminent threat to many
other nations than the threat it does to America.
I look forward to the President's address, and I am confident that a
well-thought-out plan against ISIL will compel the support of the
Nation and of Congress.
We are a nation of laws but also of values. I rise today particularly
to urge the President to not just inform us of what he plans to do but
to follow the Constitution and to seek congressional approval to defeat
ISIL. I do so for two reasons.
First, I don't believe the President has the authority to go on the
offense and wage an open-ended war on ISIL without congressional
approval; and, second, in making the momentous decision to authorize
military action, we owe it to our troops who risk their lives to do our
collective jobs and reach a consensus supporting the military mission
they are ordered to complete.
Let me first deal with the legal issue. The Constitution is clear. It
is the job of Congress, not the President, to declare war. Some parts
of the Constitution frankly are vague and open to interpretation: What
is due process? What is cruel and unusual punishment? Some parts of the
Constitution are clear and specific: You have to be 35 years old to be
President of the United States. The power to declare war is a clear and
specific power. It is an enumerated power of Congress in article I.
The clear wording of the Constitution is additionally illuminated by
writings of the principal drafter, the Virginian James Madison. In a
letter to Thomas Jefferson after the Constitution was ratified, Madison
explained the war powers clause in article I:
Our Constitution supposes what the history of all
governments demonstrates--that the Executive is the branch of
power most interested in war and most prone to it. It has
accordingly with studied care vested the question of war in
the Legislature.
So a President must seek congressional approval for significant
military action. As Commander in Chief, a President can always take
steps to defend America from imminent threats. The Framers understood
this. But even in those instances, they intended that the President
return to Congress to seek ratification of such actions.
If we take the Constitution seriously, as we pledge to do when we
take our oaths of office, we must follow the command that the President
must come to Congress to initiate major military action.
During a congressional recess, President Obama began a new military
action against ISIL. He has indicated that the military action may
continue for an extended period of time. He has stated that the action
is evolving from a narrow effort to protect Americans from imminent
threat to a campaign to go on offense in order to degrade the ability
of ISIL to cause harm. This is precisely the kind of situation that
calls for congressional action and approval.
Some have asserted that the administration need not seek
congressional approval for an extended campaign of air strikes. Humbly
and respectfully, I deeply disagree with that assertion. The
President's article II power allows him to defend America from imminent
threat, but it does not allow him the ability to wage an offensive war
without Congress. The 2001 Authorization for Use of Military Force,
crafted by President Bush and Congress in the days after the 9/11
attacks, limits the President's power to actions against the
perpetrators of those attacks. ISIL was not a 9/11 perpetrator. It
didn't form until 2003.
President Bush sought a broader AUMF at that time to allow action
against terrorist groups posing a threat to the United States. Had
Congress granted such a power, the war against ISIL would have been
covered by that AUMF. But Congress explicitly rejected giving the
President power to wage preemptive war against unnamed terrorist
organizations without additional congressional approval. Any attempt to
justify action against ISIL by reference to the 2001 AUMF would fly
directly in the face of the clear congressional action rejecting the
preemptive war doctrine.
Congress passed a second AUMF in 2002 to allow military action to
topple the Iraqi regime of Saddam Hussein. That task was completed long
ago. American troops left Iraq in 2011, and the administration has
testified recently before the Senate that the Iraq AUMF is now obsolete
and should be repealed. It provides no support for military action
against ISIL. There is no treaty of collective defense ratified by
Congress that would justify the President commencing military action
against ISIL. The Iraqi Government has asked for our help, which solves
international law sovereignty questions, but that request does not
create its own domestic legal justification.
Finally, the 1973 War Powers Resolution creates a set of timing rules
for Presidential action and congressional response in matters of war.
The resolution has been widely viewed as unconstitutional for a variety
of reasons. But even accepting its validity--and the President, like
most, almost certainly does not accept its 60-day limitation on his
article II powers--it does not change the basic constitutional
framework vesting the declaration of war in the legislative branch.
I believe a reluctance to engage Congress on this mission against
ISIL is less due to any legal analysis supporting broad executive power
than to a general attitude, held by all Presidents, that coming to
Congress on a
[[Page S5410]]
question such as this is too cumbersome and unpredictable. That
attitude is shared on the Hill by some who view questions of military
action, especially in a difficult circumstance such as this, as
politically explosive and best avoided, if at all possible
I urge the President and my colleagues to resist the understandable
temptation to cut corners on this process. There is no more important
business done in the Halls of Congress than weighing whether to take
military action and send servicemembers into harm's way. If we have
learned nothing else in the last 13 years, we should have certainly
learned that. Coming to Congress is challenging, but the Framers
designed it to be so, and we all pledged to serve in a government known
for particular checks and balances between the branches of government.
Remember in the days after 9/11, whose anniversary we commemorate
this week, the President brought to Congress a request for military
action. The ruins of the Pentagon and the World Trade Center were still
smoking and the search for the lost was still ongoing. Certainly the
American public would have supported the President's strong and
immediate Executive action in that circumstance, but President Bush
knew that the Nation would be stronger if he came to Congress to seek
authority. Similarly President Bush came to Congress prior to
initiating military action in Iraq. So many painful lessons were
learned in the aftermath of that authorization, but it is important to
remember that it was not a unilateral Executive decision but Congress
was included and voted to support the mission.
I believe it would be a grievous mistake after 13 years of war to
evolve toward a new strategy of taking prolonged military action
without bothering to seek congressional approval, and I particularly
worry about the precedent it would create for future Presidents to
assert that they have the unilateral right to engage in long-term
military action without the full participation of the people's
legislative branch. As President Obama said last year when announcing
that he would come to Congress to seek military authorization to combat
the use of chemical weapons in Syria:
This is not about who occupies the office at any given
time, it is about who we are as a country. I believe the
people's representatives must be invested in what America
does abroad . . .
Mr. President, I focus my remarks on the legal reasons for the
President to engage Congress on any plan to defeat ISIL.
Let me conclude by offering an additional reason--even a more
important reason--about why the President and Congress should work
together to craft a suitable mission for this important effort. When we
engage in military action, even only an air campaign, we ask our troops
to risk their lives and their health--physical and mental. Of course we
pray for their complete safety and success, but let's be realistic
enough to acknowledge that some may die or be injured or be captured or
see these things happen to their comrades in arms. Even those who come
home physically safe may see or do things in war that will affect them
for the rest of their lives. The long lines of people waiting for VA
appointments today or hoping to have their VA disability benefit claims
adjudicated are proof of this.
In short, during a time of war we ask our troops to give their best,
even to the point of sacrificing their own lives. When compared against
that, how much of a sacrifice is it for a President to engage in a
possibly contentious debate with Congress about whether military action
is a good idea? How much of a sacrifice is it for a Member of Congress
to debate and vote about whether military action is a good idea? While
Congressional Members face the political costs of debate on military
action, our servicemembers bear the human cost of those decisions. If
we choose to avoid debate, avoid accountability, avoid a hard decision,
how can we demand that our military willingly sacrifice their very
lives?
So I await the President's address on the real and significant threat
posed by ISIL with a firm willingness to offer support to a well-
crafted military mission. I believe the American public and this
Congress will support such a mission. It is my deepest hope that we
have the opportunity to debate and vote on the mission in the halls of
Congress as our Framers intended and as our troops deserve.
Thank you, Mr. President. I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, I am glad I had the opportunity to be
on the floor today to hear the remarks of the Senator from Virginia.
All of us look forward to the President's remarks tomorrow night. I am
going to reserve my comments because of the seriousness of the subject
and out of respect for the Office of the President until after the
President addresses the Nation. But I would say this. Having heard the
Senator from Virginia, I hope the President and his advisers listened
carefully to what the Senator from Virginia said. None of us want to
see another military adventure in the Middle East. As in Virginia and
West Virginia and Tennessee, we have had thousands--tens of thousands
of Tennesseans who have been in Iraq and Afghanistan three, four, five,
or six times on tours of duty. But this ISIS threat is a different kind
of threat to civilization, and very well could be a threat to the
United States. It requires a response. It requires the President's
leadership. He is the Commander in Chief, and it is his job to lay out
for us a firm and clear strategy for, in the words of his
administration, how we will defeat and destroy this new movement.
In thinking about whether to come to the Congress, I think it is
useful for the President to think back to the first President Bush and
the decision he had to make. I was in his cabinet. I came just about
that time and the idea of a ground war in the Middle East was a
shocking thought. We had not had something like that in this country
for a while, and the President was reluctant at first to come to the
Congress to seek approval for that, but he did it. And he said after he
had done it that in retrospect he was glad he did. What did he gain?
Even though it was a contentious debate and the margin of the vote
wasn't large, it gave a clear signal to the world that we were united
as a country against the threat at that time. It gave a clear signal to
the country that regardless of party we were united with the President
of the United States on what he saw as an urgent mission for our
country. As a result of that, he had an enormously successful
operation. It was well planned, funded by other countries, primarily,
and had a limited objective. They got to the gates of Baghdad, the
objective was realized, and we came home. I think the fact that the
President sought the advice of Congress was a part of that.
In this case I think this President would find in this body careful
listeners to what he has to say, a willingness on both sides of the
aisle to consider his strategy, and a willingness to support a
carefully crafted plan to meet his objectives. This is not Libya, this
is not Grenada, and this is not Panama. This is at least 2 or 3 years.
Any time our country is expected to have a military action especially
in the Middle East again, it needs to have the full support of the
American people, and that starts here.
So I will wait until Wednesday night to hear what the President has
to say, but the Senator from Virginia has given some very careful and
reasonable advice, and I hope the President and his advisers will
consider that very carefully.
I am here today to speak on another subject. I am here today because
Senate Democrats want to amend the Bill of Rights--at least 48 of them
do. Forty-eight of them want to say: Let's amend the United States
Constitution and the free exercise clause of the First Amendment. Let's
amend the guarantee of free speech. That is an extraordinary
development.
If passed, Senate Joint Resolution 19, which is the subject on the
floor today, would give Congress and State governments the power to
decide which Americans can speak in elections, what they can say, when
they can say it, and how they say it. This measure would gut the free
speech provisions of the First Amendment. It is a shocking proposal--a
shocking proposal made even more so by the fact that it is supported by
48 Democratic Senators and President Obama. I wonder if any of them
have taken the time to see the writing
[[Page S5411]]
on the wall of the Newseum down the street. In big bold letters carved
into the concrete it says: ``Congress shall make no law . . . abridging
the freedom of speech . . . '' That is in the First Amendment to the
United States Constitution.
Our Founders passed the Constitution, and they said, well, we forgot
to do the Bill of Rights. So they came back with the Bill of Rights,
and this is in the First Amendment. Free speech is one of the defining
characteristics of liberal democracies worldwide. No country has
embraced free speech and protected it as much as has the United States
of America. Other countries look to us as a model for this remarkable
freedom. So why would anyone attempt to amend the Constitution, amend
the Bill of Rights, and change the free speech clause in the First
Amendment?
When we look at the Democratic leadership in the Senate we see a
pattern of using a gag rule to silence Senators who were sent here on
behalf of the people who elected them to represent their views. The
majority leader has prevented Tennesseans, for example, from having
their say through their Senators, their elected officials, for years
now, by using the gag rule in this body to keep amendments from being
considered and voted on. Senators have listened to their constituents
and proposed amendments on ObamaCare, taxes, the National Labor
Relations Board, Egypt, Iran, Iraq, etc., and they are told by the
Democratic leadership that they won't get votes. I have said on this
floor many times, it is like being invited to join the Grand Ole Opry
and not being allowed to sing.
But the consequences are much more serious than that. It is not just
my amendment or my colleague Senator Corker's amendment, and it is not
just Tennesseans' amendments. It is the voters of every State who sent
us here to have a say on their behalf. Senator Barrasso from Wyoming
has counted that since July of 2013, last year, only 14 Republican
amendments and 9 Democratic amendments have received votes. That is an
astounding number. There are 100 Senators here representing more than
300 million Americans. This is said to be the world's greatest
deliberative body. The new book ``The American Senate'' describes this
body, saying: ``This is the one authentic touch of genius in the
American political system.'' What makes it ``the one authentic touch of
genius in the American political system'' then? It is that you take a
difficult message or a difficult bill, you put it on the floor, and you
talk about it and you talk about it, and you debate it, and you amend
it, until finally you say that is enough and 60 of us say it is time to
cut off debate. Let's vote and have a result.
Yet in a year's time there have only been 23 amendments to
legislation that have received votes. Some Members of this body who are
running for re-election and have never had a vote on any amendment they
offered on the Senate floor. Someone might well ask, well, what have
you been doing?
Then this summer the Democrats extended the gag rule from the Senate
floor to the Senate committee rooms. The bills of some members of the
Appropriations Committee, on which I serve, were indefinitely postponed
because the Senate leadership wanted to avoid difficult votes on those
amendments--no vote on clean water, no vote on energy, no vote because
it was a difficult vote.
Now in this provision Democrats and the President are trying to
extend the gag rule to the free speech clause of the First Amendment.
What this proposal would do is give Congress the power to silence the
groups or organizations that threaten their reelection. For example,
the government could tell a gun owner in Johnson City, TN, that he or
she cannot spend money to advocate in defense of Second Amendment
rights if that speech falls too close to an election and threatens to
influence the campaign of incumbents. Or similarly, Congress might tell
Tennessee Right to Life: You cannot advertise to protect the rights of
the unborn. Congress could decide that such speech should be restricted
or prohibited because incumbents fear it is really an endorsement of a
candidate for political office.
Also incumbents could seek to stop new political movements like the
tea party by placing unachievable conditions on their ability to raise
and spend funds on behalf of candidates they support. They can do this
under the guise of protecting donors by saying you can't receive
donations unless you've been successful in a previous election or you
have a real chance of being successful in the future. The decision of
whether a new political movement is politically viable would of course
be made by their political competitors. Or Congress might criminalize
expenditures by organizations like the U.S. Chamber of Commerce, who
might oppose a plan by Senate Democrats to increase the minimum wage on
the grounds that the funds spent by the U.S. Chamber of Commerce are
the equivalent of attack ads against Democratic candidates in tight
reelection races.
Who might be exempt from this gag rule on free speech? Well, freedom
of the press--that is mentioned in the amendment. And who would freedom
of the press be? Who might this be? Well, it would be billionaires who
could buy television stations, billionaires who could buy a newspaper
and buy any form of this new media that we see around us. So ordinary
Americans could have their ability to advocate their views restricted,
but billionaires could buy TV stations or buy a newspaper or buy any
form of media and say whatever they think. Those are the people exempt
from the gag rule proposed by the Democrats.
What about millionaire candidates? It has been considered by the
Supreme Court and by all who looked at it that while Congress might put
rules on raising from others that it could never place on spending your
own money. So we have candidates running for President, running for the
Senate, who spend their own money. So we might not be limiting the
millionaire candidates to the Senate and their right to free speech. We
might not be limiting the billionaire owners of television stations and
newspapers and their right to free speech, but ordinary Americans would
have a gag rule. So the gag rule that began on the Senate floor and
went to the Senate hearing rooms would now be applied by Congress to
the ordinary Americans across this country. The Founders would never
have imagined that. They passed the First Amendment to protect against
this very concern--that government censors would tell ordinary
Americans what they can and cannot say.
President Harry Truman, who liked to exercise a lot of free speech
himself, warned about this in a message to Congress on August 8, 1950.
He said:
Once a government is committed to the principle of
silencing the voice of opposition, it has only one way to go,
and that is down the path of increasingly repressive measures
until it becomes a source of terror to all of its citizens
and creates a country where everyone lives in fear.
That is President Harry Truman.
That is not a description of this country. That is not a description
of America. That is a description of our enemies.
Look through our history. How would this law apply in our history?
What about Harriet Beecher Stowe before the Civil War, writing ``Uncle
Tom's Cabin?'' Maybe she would want to buy an ad in the local newspaper
saying: Mr. Lincoln is a nice man. Read my book. The State might not
like that. They might like holding slaves. They might not like what she
says and what she wants to advertise.
What about Thomas Payne at the beginning of our country's history
writing ``Common Sense''? Would a law such as this apply to his tract--
the 1 he published or if he published 10 or if he published 20?
Taken to its logical conclusion, this proposal could be used by a
Congress or a State to ban books, to ban writings. It is shocking that
we are standing here today and debating such a proposal. It is not
surprising that so few from the other side of the aisle are streaming
through the door and standing on the floor--as the Senator from Utah
mentioned--to defend this proposal.
Every American ought to be concerned about this proposal to amend the
Bill of Rights and the free speech clause in the First Amendment. They
should be deeply concerned that the Senate majority leader and his gag
rule have effectively silenced their elected representatives here in
the Senate, and now he wants to silence them.
[[Page S5412]]
I thank the Presiding Officer.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, I rise today, as I have for many years, to
urge my colleagues to fix our Nation's broken campaign finance system.
I do so after much deliberation and consideration of a series of
Supreme Court decisions and the explosion of undisclosed and
potentially unlimited campaign spending that has Americans of all
political backgrounds concerned. Indeed, I remember when this was an
issue that brought Republicans and Democrats together, and I was proud
to support Senator McCain's efforts at campaign finance reform.
Unfortunately, the recent Supreme Court decisions, such as Citizens
United and McCutcheon, have given more than the mere appearance that
money--and corporate money at that--has a louder voice than everyday
Americans. Indeed, Justice Breyer wrote in his McCutcheon dissent that
``taken together with Citizens United . . . [McCutcheon] eviscerates
our Nation's campaign finance laws, leaving a remnant incapable of
dealing with the grave problems of democratic legitimacy that those
laws were intended to resolve.'' In my view, these misguided decisions
by a slim majority of the Court have allowed spending on political
campaigns to get out of control.
There is a pervasive and corrosive view of politics felt by too many
in this country that their ability to express their concerns and wishes
to their elected officials is being crowded out by narrow interests and
campaign funds. Rhode Islanders don't want their voices drowned out by
unlimited money with little or no transparency or no disclosure on
where that money comes from.
In order to have a broad-based democratic system, we need reasonable
campaign finance laws which ensure that those with large financial
resources cannot drown out the voice of everyday Americans. That is
what this constitutional amendment we are seeking to debate is all
about.
The system is broken, and as much as individual candidates can pledge
to provide more disclosure or take other steps to increase
transparency, that is not the solution to fixing the problem. We need
to give Congress and the States the ability to set reasonable rules for
all candidates.
The constitutional amendment we are considering today does three
straightforward things:
First, in order to advance democratic self-governance and political
equality, it gives Congress and the States the power to regulate and
set reasonable limits on the raising and spending of money by
candidates and others to influence elections.
Second, it grants Congress and States the power to enforce the
amendment and to distinguish between people and corporations or other
artificial entities.
Third, it ensures that nothing in the amendment could be used to
abridge the freedom of the press.
This amendment doesn't create any new and specific campaign finance
rules; rather, it gives Congress and the States the power to pass
legislation and to distinguish between real people and legally created
artificial entities, such as corporations. Whatever legislation that
would be enacted pursuant to this constitutional amendment would be the
result of a serious and lengthy debate in Congress and in the States. I
welcome that debate, and I believe most Americans want that debate as
well. It would begin a process that is so necessary to rebuild a sense
of trust in our government and our electoral system.
I urge my colleagues to support this constitutional amendment to fix
our broken campaign finance system by giving Congress and the States
the power to reasonably regulate political spending, thereby reducing
the influence of wealthy special interests. It is these same wealthy
special interests that obfuscate the facts of a debate and block
efforts that could give our country and our economy a shot in the arm.
Indeed, I hope we can also find bipartisan support to give more
Americans the ability to have a fair shot at success. For example, we
need to make college more affordable and ease the burden of student
debt on millions of Americans, invest in our infrastructure, raise the
minimum wage, expand job training, close the pay gap for women, boost
jobs through manufacturing--and that is just for starters.
We need to pass these kinds of bills and send them to the House and
urge them to act. The Senate was able to come together and pass a bill
to provide relief to the long-term unemployed earlier this year, but
with 9.6 million Americans still out of a job and looking for work--3
million of whom have been doing so for more than 6 months--House
Republicans have refused to follow suit. It is imperative that we keep
working to strengthen our economy, create jobs, and provide a fair shot
for everyone.
I believe fixing the campaign finance system through this
constitutional amendment will provide a foundation so we can have
reasonable debate that is responsive to the interests of the American
people and not responsive to the interests of a narrow class of
Americans.
I urge my colleagues to take up this bill, pass it, and get on with
the business of giving everyone a fair chance at success.
Mr. President, I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. CRUZ. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CRUZ. Mr. President, at a time of extraordinary challenges across
the globe and here at home, we are not gathered in the Senate to
discuss how to confront the threat of ISIS. We are not gathered in the
Senate to discuss how to prevent Putin's Russia from invading its
neighbors. We are not gathered in the Senate today to discuss how to
solve the humanitarian crisis at the border with some 90,000
unaccompanied children coming into the country this year. We are not
gathered in the Senate today to discuss how to bring back jobs and
economic growth, or how to correct the fact that the Obama economy has
produced the lowest labor force participation since 1978--92 million
Americans not working today. And we are not gathered in the Senate to
discuss how to stop the disaster that has been ObamaCare, which has
caused millions of Americans to lose their jobs, to be forced into
part-time work, to lose their health insurance, to lose their doctors,
and to see their premiums skyrocket. No.
Instead, we are gathered today in the Senate for a very different
topic. The majority leader and the Democratic majority in this Senate
have determined that the most important priority this Senate has, which
we are spending the entire week addressing, is the proposal of 49
Democrats to repeal the free speech provisions of the First Amendment.
That is not hyperbole. Typically, when Americans hear that Members of
the Senate are proposing repealing the free speech protections of the
First Amendment, the usual reaction is a gasp of disbelief. Could we
really have entered a world so extreme that our common ground no longer
even includes the First Amendment of the Constitution?
The First Amendment protects our most foundational rights. Yet, under
the amendment we are debating today that 49 Democrats have signed their
name to, the First Amendment would, in effect, have crossed out freedom
of speech. Why? Because 49 Democrats have cosponsored a constitutional
amendment that is currently on the floor of the Senate, being voted on
this week, that would give Congress blanket authority to regulate
political speech.
From the dawn of our Republic we have respected the rights of
citizens to express their views. It is the right upon which every other
civil liberty is predicated. But in the Democratic Senate of 2014,
citizens' free speech rights are tools for partisan warfare.
This proposal before the Senate is, bar none, the most radical
proposal that has been considered by the Senate in the time I have
served. If this proposal were to pass, its effects would be
breathtaking. It would be the most massive intrusion on civil liberties
and expansion of Federal Government power in modern times.
Let's talk about how and why that is the case. The text of the
amendment that is currently in the Bill of Rights
[[Page S5413]]
says, Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech. So right now we operate under a First Amendment that
says Congress shall make no law abridging the freedom of speech--not
some laws; not laws that some politicians think would help them
politically; but no law abridging the freedom of speech is what our
First Amendment says.
What would the new First Amendment say? Well, according to our
Democratic friends, the new First Amendment would have two sections.
The first section says, Congress and States may regulate and set
reasonable limits on the raising and spending of money by candidates
and others to influence elections. Now, ``reasonable.'' Who could
oppose reasonable limits? Isn't that the essence of reasonableness?
Perhaps I have forgotten my spectacles, but I don't see in the current
First Amendment, Congress can make reasonable restrictions on the
freedom of speech. It doesn't say that. It says Congress shall make no
law abridging the freedom of speech.
What is the difference? The First Amendment is not about reasonable
speech. The First Amendment was enacted to protect unreasonable speech.
I, for one, certainly don't want our speech limited to speech that
elected politicians in Washington think is reasonable.
There was a time this body thought the Alien and Sedition Acts
prohibiting criticizing the government were reasonable. There is a
reason the Constitution doesn't say let's trust politicians to
determine what speech is reasonable and what isn't.
I would note the Supreme Court has long made clear the First
Amendment is all about unreasonable speech. For example, when the Nazis
wanted to march on Skokie, IL--Nazi speeches, the paradigm example of
unreasonable speech; it is hateful, bigoted, ignorant speech--the
Supreme Court said the Nazis have a constitutional right to march down
the street in Skokie, IL, with their hateful, bigoted, ignorant speech.
Now every one of us then has a moral obligation to condemn it as
hateful and bigoted and ignorant. But the First Amendment is all about
saying government doesn't get to decide what you say is reasonable and
what you say is not.
The First Amendment is all about saying we will not censor American
citizens. What is this amendment about? Saying the Federal Government
now has the power to censor each and every American who dares speak
about politics. So if a person has a political view at home, they
better hope politicians in Washington think that view is reasonable. I
will tell my colleagues that very little of what we do in this town is
reasonable and the idea that elected politicians would seek to arrogate
power to themselves to censor the citizens is anathema to who we are as
a country.
This bill, if adopted, raises three simple questions--questions I
raised at three hearings in the Judiciary Committee and in the
Constitution subcommittee, and I am the ranking member on the
Constitution subcommittee of the Senate Judiciary Committee. We have
had extensive debates on this amendment. I wish to pose three simple
questions that I would ask every Democrat who has put his name to
this--and I notice, sadly, my friend, the Presiding Officer, is one of
them, but he didn't serve on the committee. So I would ask him to
consider these questions, and I would hope every Democrat who has put
his name to this, upon thinking about it, will have second thoughts and
pull his name off.
So here are three questions every one of us should ask. No. 1, should
Congress have the constitutional authority to ban movies?
No. 2, should Congress have the constitutional authority to ban
books?
And No. 3, should Congress have the constitutional authority to ban
the NAACP from speaking about politics?
My answer to these three questions is unequivocally, unquestionably
no. Yet every single Democrat who has put his name on this amendment
has no choice but to answer yes to all three of these questions.
I posed these questions in the Constitution subcommittee. When I
posed them to the committee, the chairman of the committee, Senator
Durbin, gaveled the hearing shut because he could not answer those
questions. But at the full Judiciary Committee hearing, I was told by
my Democratic friends: This is hyperbole. This is exaggeration. We
don't intend to ban movies or books or the NAACP. My response in those
hearings was that this is the Senate. Forty-nine Senators are proposing
an amendment to the Bill of Rights. The inchoate intentions that may be
buried in the hearts of each and every Senator are utterly irrelevant
to the question. The question is, What is the language that would be
inserted into the Bill of Rights of our Constitution?
Let's look to the language. Section 2 of this amendment says Congress
and the States shall have the power to implement and enforce this
article by appropriate legislation and may distinguish between natural
persons and corporations or other artificial entities created by law,
including by prohibiting such entities from spending money to influence
elections.
That is very specific language that would now become part of our Bill
of Rights. It is breathtaking. It is staggering in its scope.
I wish to take these one at a time because the Democrats, I am sure--
all 49 Democrats--say, We don't intend to ban movies, books, or ban the
NAACP. Well, let's look to the language they put their names to.
No. 1, let's start with movies. We have all heard a lot about the
Citizens United case. In fact, we remember President Obama during the
State of the Union hectoring the Supreme Court of the United States for
the Citizens United case.
Relatively few people know the facts that underlie the Citizens
United case. The facts in those circumstances are that a nonprofit
corporation made a movie critical of Hillary Clinton, and for making a
movie critical of Hillary Clinton the Obama administration tried to
impose massive fines on them. Citizens United, which President Obama
and the Senate Democrats decry as the most pernicious thing in modern
times, it seems, was all about the government trying to fine a movie
maker for daring to make a movie about Hillary Clinton.
Listen, let me be very clear. There are movie makers--Michael Moore's
movies I think are complete nonsense. To quote the bard, they are full
of sound and fury, signifying nothing. Michael Moore has a right to
keep making those movies over and over again and spewing his nonsense
as long as he likes. The First Amendment protects his right to be
wrong.
And as a simple legal matter, would this amendment give Congress the
constitutional authority to ban movies?
Paramount Pictures is a corporation. Under the text of the amendment,
what could Congress do to a corporation? It can prohibit--and that is
the language in the amendment--it can prohibit the corporation from
spending money to influence elections. So if a movie talks about
politics, Congress can make it a criminal offense. Go down to
Hollywood, take the producers, the directors, the actors and everyone
involved in the movie and put them in handcuffs. That is breathtaking.
Now, again, the Democratic Senators say, We don't intend to do that.
Then why did they submit a constitutional amendment to the Bill of
Rights that says Congress can prohibit Paramount Pictures from speaking
about politics? That means Congress can ban movies.
How about the second question: Should Congress be able to ban books?
That is an extreme question by anyone's measure. Surely, nobody in
Washington is talking about banning books. Well, if we assumed that,
our assumption would be wrong. Indeed, during the oral argument in
Citizens United, the Supreme Court asked the Obama administration: Your
position is that under the Constitution, the sale for the book itself
could be prohibited. The answer from the Obama administration: Yes, if
the book contained the functional equivalent of express advocacy. The
Obama administration went in front of the Supreme Court and argued: We
have the power to ban books.
This is in the record. This is in the official transcript. People can
go and listen to this argument, listen to the Obama administration say
they believe the Federal Government has the ability to ban books from
your house. That is breathtaking.
I recognize in today's partisan society there are some people who may
be
[[Page S5414]]
watching these remarks who aren't inclined to believe me. They might
say: Listen, you are a Republican. You are a conservative. And coming
from the spot in the political aisle that I do, I don't tend to trust
Republicans or conservatives.
I understand that. I would tell you that if you don't believe me,
perhaps you would believe that famed rightwing organization, the ACLU.
The ACLU said this amendment, to which 49 Democrats have signed their
names--what would it do? It would ``fundamentally `break' the
Constitution and endanger civil rights and civil liberties for
generations.'' I said a few minutes ago that this was the most radical
legislation that has been put before this body. Why is that? Because it
is legislation the ACLU says would ``fundamentally `break' the
Constitution.'' Breaking the Constitution is no minor matter, and
endangering civil rights and civil liberties for generations ought to
concern every Member of this body.
One still might say: Surely banning books is hyperbole.
Well, if you don't believe me, the ACLU in writing told the Senate
this amendment--to which 49 Democrats have put their names--would give
Congress the power to ban Hillary Clinton's new book, ``Hard Choices.''
I want that to sink in for a moment. Forty-nine Democrats have just put
their names to a constitutional amendment, and the ACLU rightly tells
us that the express language of the amendment gives the government the
power to ban Hillary Clinton's new book, ``Hard Choices.''
I have that letter from the ACLU. I also have a subsequent letter
from the ACLU doing something which they haven't done before and which
I don't know they will do again--thanking me and thanking all of us who
have been fighting against this amendment for standing up for civil
liberties. It is truly a shame the Democratic Party is not among them.
I ask unanimous consent to have printed in the Record both of the
letters from the ACLU I referred to earlier.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Legislative Office,
American Civil Liberties Union,
Washington, DC, June 3, 2014.
Re ACLU Opposes the Udall Amendment.
Hon. Patrick Leahy,
U.S. Senate, Committee on the Judiciary, Washington, DC.
Hon. Charles Grassley,
U.S. Senate, Committee on the Judiciary, Washington, DC.
Dear Chairman Leahy and Ranking Member Grassley: The
American Civil Liberties Union strongly opposes S.J. Res. 19,
a proposed constitutional amendment, sponsored by Sen. Tom
Udall (D-NM), that would severely limit the First Amendment,
lead directly to government censorship of political speech
and result in a host of unintended consequences that would
undermine the goals the amendment has been introduced to
advance--namely encouraging vigorous political dissent and
providing voice to the voiceless, which we, of course,
support.
As we have said in the past, this and similar
constitutional amendments would ``fundamentally break' the
Constitution and endanger civil rights and civil liberties
for generations.''
Were it to pass, the amendment would be the first time,
save for the failed policies of Prohibition, that the
Constitution has ever been amended to limit rights and
freedoms. Congress has had the wisdom to reject other rights-
limiting amendments in the past, including the Federal
Marriage Amendment, the School Prayer Amendment, the Victims'
Rights Amendment and, of course, the Flag Desecration
Amendment, which many of the sponsors of this resolution
opposed. It should likewise reject the Udall amendment.
1. Description of the Amendment
While short, the Udall amendment is deceptively complex and
presents several concerns.
Section 1 provides that ``[t]o advance the fundamental
principle of political equality for all, and to protect the
integrity of the legislative and electoral processes,
Congress shall have power to regulate the raising and
spending of money and in-kind equivalents with respect to
Federal elections.''
Specifically, Subsection (1)(1) would allow limits on
``contributions to candidates for nomination for election to,
or for election to, Federal office.'' Subsection (1)(2) would
allow limits on ``the amount of funds that may be spent by,
in support of, or in opposition to such candidates.'' Section
2 provides the same authorities to each state with respect to
state elections.
Section 3 says that ``[n]othing in this article shall be
construed to grant Congress the power to abridge the freedom
of the press.'' And, Section 4 grants express authority to
the states and Congress to implement these limits through
``appropriate legislation.''
2. The Amendment is Unnecessary and Would be Corrosive to Vigorous
Political Debate About the Issues of the Day
Congress and the states already have the authority to limit
contributions to candidates, including limits on expenditures
like advertisements in support of a campaign or candidate
paid for by an outside group and coordinated with that
campaign or candidate. They have had this authority since the
landmark Buckley v. Valeo Supreme Court case in the 1970s,
which remains good law and only placed First Amendment limits
on the ability of the government to control independent
expenditures (that is, uncoordinated express advocacy for or
against a candidate).
Citizens United's holding, that corporations (including
non-profit advocacy groups like the ACLU and thousands of
others) and labor organizations may spend general treasury
funds on independent expenditures, is entirely consistent
with the reasoning of Buckley.
Subsections (1)(1) and (2)(1) are therefore both
unnecessary and redundant of existing law, which, notably,
already also places some limits on independent expenditures,
namely reporting requirements and less favorable tax
treatment. Such redundancy can be dangerous for civil
liberties, in that it invites courts to ask why lawmakers
said the same thing twice, and whether duplication means that
the second statement confers additional powers.
In other words, while the inclusion of contribution limits
in the Udall amendment is presumably an attempt to get at
McCutcheon's ban on aggregate limits, it could also permit
other laws limiting contributions that would severely harm
political debate, exacerbate the incumbency advantage, give
certain political parties an unfair leg up and
disproportionately impair third parties, many of whom cannot
afford the sophisticated legal counsel necessary to navigate
the complex new laws this amendment would allow. The
contribution section could, for instance, allow a federal law
limiting contributions to the point where challengers cannot
mount an effective campaign, and third parties simply can't
afford to stay in business.
More important, however, is the proposed change in
Subsections (1)(2) and (2)(2), which would permit the federal
and state governments to limit the amount of funds spent ``in
support of, or in opposition to'' candidates for office.
Right now, under existing law, there is a distinction between
express advocacy (``vote Romney/Ryan'' or ``support Obama/
Biden'') and ``issue advocacy'' (``call Speaker Boehner and
tell him to stop blocking NSA surveillance reform'').
Historically, campaign finance reform efforts, including
constitutional amendments such as this one, have sought to
restrict ``sham'' issue advocacy--that is, communications
that some claim are express advocacy disguised as issue
advocacy.
As a practical matter, however, the staff vested with the
responsibility of distinguishing between the two at the
Federal Election Commission (``FEC'') or the Exempt
Organizations Division of the Internal Revenue Service are
ill-equipped to draw these lines in a consistent and
principled manner.
For instance, would an ACLU ad urging members of Congress
to support Patriot Act reform, which runs shortly before the
November 2004 election (when that issue is at play in the
election), be construed as an issue ad exhorting voters to
support reform or a covert attempt to influence voters to
oppose members who do not support reform? Similarly, would an
ad by a group urging repeal of the Affordable Care Act, which
runs before the 2012 presidential election, be issue advocacy
or covert express advocacy?
Given the inability of the world's best election law
lawyers, let alone overworked line revenue agents and
attorney-advisors, to make a principled determination on any
such ads, lawmakers tend to overcorrect and restrict all
issue advocacy in order to suppress any covert express
advocacy. The Bipartisan Campaign Reform Act attempted to do
exactly that by criminalizing any broadcast, cable or
satellite communication that simply mentioned a candidate in
the 30 days before a primary or 60 days before a general
election.
Recognizing both the severe harm to political debate
through overbroad laws that suppress all issue advocacy
mentioning a candidate for office, and the difficulty in
making principled distinctions between issue and express
advocacy under a totality of the circumstances approach, the
courts have rightly rejected measures that allow the
government to restrict issue advocacy at all.
Sections (1)(2) and (2)(2) are designed to, and would,
completely overturn that legal distinction between issue and
express advocacy and permit the government to criminalize and
censor all issue advocacy that mentions or refers to a
candidate under the argument that it supports or opposes that
candidate.
To give just a few hypotheticals of what would be possible
in a world where the Udall proposal is the 28th Amendment:
Congress would be allowed to restrict the publication of
Secretary Hillary Clinton's forthcoming memoir ``Hard
Choices'' were she to run for office;
Congress could criminalize a blog on the Huffington Post by
Gene Karpinski, president of the League of Conservation
Voters,
[[Page S5415]]
that accuses Sen. Marco Rubio (R-FL) of being a ``climate
change denier'';
Congress could regulate this website by reform group Public
Citizen, which urges voters to contact their members of
Congress in support of a constitutional amendment addressing
Citizens United and the recent McCutcheon case, under the
theory that it is, in effect, a sham issue communication in
favor of the Democratic Party;
A state election agency, run by a corrupt patronage
appointee, could use state law to limit speech by anti-
corruption groups supporting reform;
A local sheriff running for reelection and facing
vociferous public criticism for draconian immigration
policies and prisoner abuse could use state campaign finance
laws to harass and prosecute his own detractors;
A district attorney running for reelection could
selectively prosecute political opponents using state
campaign finance restrictions; and
Congress could pass a law regulating this letter for noting
that all 41 sponsors of this amendment, which the ACLU
opposes, are Democrats (or independents who caucus with
Democrats).
Such examples are not only plausible, they are endless.
Currently, we do not have to worry about viewpoint
discrimination, selective enforcement and unreasonable
regulations that unnecessarily stifle free speech without
advancing a legitimate state interest because of the First
Amendment, and these protections would not apply to speech
covered by this proposed amendment. Tinkering with the First
Amendment in this way opens the door to vague and overbroad
laws, which both fail to address the problem that Congress
wishes to solve and invariably pull in vast amounts of
protected speech.
Vague and overbroad laws regulating pure speech are also
exceedingly dangerous to democratic processes because they
can be misused by various parochial interests. During the
civil rights era, for instance, southern states often tried
to use laws forcing groups exercising their First Amendment
rights to disclose their membership, in a bid to run them out
of town.
Rather than ``equalizing'' the debate and giving voice to
the voiceless, laws that allow criminalization of issue
advocacy--which this, on its face, would permit--actually
give the advantage to special interests with significant
resources, because they can now call on the law to regulate
their policy opponents. By exempting this class of political
speech from the scope of the First Amendment (and potentially
other rights), it would provide no protection at all for
disfavored minority groups on both the left and right.
Congress would, for instance, be free to pass laws targeting
only ``political'' speech by groups like ACORN.
3. The Amendment Could Perversely Harm Freedom of the Press and Would
Directly Eviscerate the Freedoms of Speech, Assembly and Petition
In addition to allowing Congress and the states to
criminalize issue advocacy, the amendment's third section,
exempting ``freedom of the press'' from its reach, poses four
major problems.
First, it could actually make matters worse. Those with
enough money can afford to buy newspapers or journalistic
websites, which are indisputably press outlets, and would be
completely outside the scope of the laws permitted by this
amendment. William Randolph Hearst's newspaper empire, for
instance, was at first a vigorously partisan supporter of
Franklin Roosevelt (and then critic), and such partisan
electioneering by the mass media would unquestionably be
permitted under this amendment.
Second, it invites government inquiry into what constitutes
``the press,'' which is increasingly problematic in the age
of citizen journalism and the internet. Here, the government
would have to determine if the Daily Kos or Red State qualify
as ``the press.'' If yes, they can blog freely. If no, they
could be censored or even go to jail. The potential for abuse
is obvious.
Accordingly, the reference to freedom of the press could
perversely limit that freedom. Legally, ``the press'' has
been defined broadly. It encompasses not only the ``large
metropolitan publisher'' but also the ``lonely pamphleteer.''
``Freedom of the press is a fundamental personal right,'' the
Supreme Court has written, ``which is not confined to
newspapers and periodicals. It necessarily embraces pamphlets
and leaflets. The press in its historic connotation
comprehends every sort of publication which affords a vehicle
of information and opinion.''
The reference to freedom of the press will force the
government and courts to draw difficult lines between non-
traditional media and the ``large metropolitan publisher.''
More often than not, the latter, simply because of the
breadth of issues covered in their media, is going to appear
less ``political'' than the pamphleteer handing out circulars
urging greater gun control, reproductive freedom or a path to
citizenship for undocumented immigrants. The courts
interpreting the laws permitted by this amendment are
therefore more likely to move away from the notion of
``lonely pamphleteer'' as press.
Finally, fourth, the reference to the press clause
expressly incorporates the speech, assembly and petition
clauses into the Udall amendment by omission. In other words,
the amendment makes clear--through lack of reference to the
speech clause--that this amendment is meant to directly
constrain the existing speech, assembly and petition rights,
and potentially all other constitutional rights that could
conceivably apply, with respect to both the state and federal
governments. That is both unprecedented and exceedingly
worrisome.
Additionally, we note that Section 3 appears to only apply
to Congress, suggesting that states may be free to
``abridge'' the freedom of the press.
4. Amending the Constitution to Limit a Specifically Enumerated
Constitutional Right is Unprecedented in the History of the Republic
It bears emphasizing that this would be the first time the
amendatory process has been used to directly limit
specifically enumerated rights and freedoms. Many argue that
such an amendment is not unprecedented. What they mean,
however, is that amending the Constitution in response to an
unpopular court case is not unprecedented. In those cases,
however, the amendment either had little to do with
individual rights or it restored lost rights. In no case, did
it limit the right and freedom that vouchsafes our ability to
advocate for all of our other rights and freedoms.
Finally, while rights-limiting amendments are
unprecedented, proposals to do so are legion.
The ACLU has aggressively lobbied against, to name just a
few, the Flag Desecration Amendment, which would have
overturned the Supreme Court cases prohibiting the state and
federal governments from criminalizing defacement of the
American flag; the Victims' Rights Amendment, which would
have limited the rights of criminal defendants; an amendment
to deny automatic citizenship to all persons born in the
United States; the School Prayer Amendment, which would have
given school officials the power to dictate how, when and
where students pray; and the Federal Marriage Amendment,
which would have denied marriage rights to same-sex couples
in committed relationships.
Were this to pass, the Udall amendment would grease the
skids of these and other proposals to limit fundamental
constitutional rights.
For all of these reasons, we strongly urge you to oppose
the Udall amendment, and to focus Congress's attention on
enacting effective public financing laws, tightening up the
coordination rules, ensuring prosecutors have effective
resources to pursue straw donations and other common sense
measures for promoting the integrity of our political system.
What you must not do is ``break'' the Constitution by
amending the First Amendment.
Please do not hesitate to contact Legislative Counsel/
Policy Advisor Gabe Rottman at 202-675-2325 or
[email protected] if you have any questions or comments.
Sincerely,
Laura W. Murphy,
Director, Washington Legislative Office.
Gabriel Rottman,
Legislative Counsel/Policy Advisor.
____
American Civil Liberties Union,
Washington, DC, August 6, 2014.
Hon. Ted Cruz,
U.S. Senate, Dirksen Senate Office Bldg., Washington, DC.
Dear Senator Cruz: We write to offer our thanks for your
co-sponsorship of the USA Freedom Act and your ardent defense
of the First Amendment in two important areas. As you so
aptly said, ``Republicans and Democrats are showing America
that the government can respect the privacy rights of law-
abiding Americans, while at the same time, giving law
enforcement the tools needed to target terrorists.''
The American Civil Liberties Union has long sought to work
with members at all points on the political spectrum to
advance fundamental American principles of individual liberty
and personal privacy. We are heartened that you have been
willing to reach across the aisle to further those essential
values and implement needed reforms of our growing
surveillance state.
We would also note that, while many of the objections to
the bulk surveillance programs revealed in the past year have
focused on privacy, the ACLU has long been critical of mass
surveillance on First Amendment grounds as well.
Indiscriminate government spying abrogates our constitutional
right to anonymous speech and chills associational activity.
Indeed, it raises many of the same concerns that have led
the Supreme Court to prohibit the compelled disclosure of
political associations and beliefs in landmark cases like
National Association for the Advancement of Colored People v.
Alabama, 357 U.S. 449 (1958); Shelton v. Tucker, 364 U.S. 479
(1960); Gibson v. Florida Legislative Committee, 372 U.S. 539
(1963); Brown v. Socialist Workers Party, 459 U.S. 87 (1982);
McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995);
and Watchtower Bible and Tract Society of New York, Inc. v.
Village of Stratton, 536 U.S. 150 (2002).
One of the key civil liberties concerns with indiscriminate
bulk surveillance, for either criminal investigative purposes
or national security, is that it gives the government a
detailed record of those dissenting from official policy--on
both the right and left. Surveillance chills such dissent,
which results in poor policy outcomes. Anonymity is essential
for the dissemination of unpopular ideas, which often enrich
the marketplace of ideas. Anonymous speech and association
have
[[Page S5416]]
driven social progress on numerous fronts, from civil and
labor rights to, tellingly, our expansive modern view of free
speech.
For these and other reasons, the ACLU also opposes S.J.
Res. 19, a proposed constitutional amendment that would limit
the First Amendment to allow the government--federal and
state--to ``regulate and set reasonable limits on the raising
and spending of money by candidates and others to influence
elections.''
While we certainly appreciate the good intentions of the
measure's supporters, we fear--based on long historical
experience--that such an open ended remit would result in the
censorship of pure issue advocacy by non-partisan, non-profit
groups. Likewise, we anticipate the amendment would be used,
much like programmatic national security surveillance, to
compel disclosure of constitutionally protected anonymous
political activity and association by those espousing
controversial or minority views.
The fact this would be the first time any enumerated right
in the Constitution has been restricted through the
amendatory process underscores the gravity of the threat to
the First Amendment posed by S.J. Res 19. We thank you for
your support for the First Amendment in your staunch
opposition to the constitutional amendment and your original
co-sponsorship of the USA Freedom Act.
We look forward to working with you on other First
Amendment issues. Please contact Legislative Counsel/Policy
Advisor Gabe Rottman if you should have any questions at 202-
675-2325 or [email protected].
Sincerely,
Laura W. Murphy,
Director, Washington Legislative Office.
Michael W. Macleod-Ball,
Chief of Staff/First Amendment Counsel.
Gabriel Rottman,
Legislative Counsel/Policy Advisor.
Mr. CRUZ. The third question every Senator who has put his name to
this amendment must answer is this: Should Congress have the
constitutional authority to ban the NAACP from speaking about politics?
Well, why is that? Because the NAACP is a corporation. We hear the word
``corporation,'' and we tend to think of ExxonMobil, Walmart, or what
have you, but the NAACP is a corporation. What could Congress do under
this amendment, under the explicit language of this amendment? Congress
could prohibit the NAACP from speaking about politics.
Let me state some other corporations Congress would have the
constitutional authority to silence. The ACLU is a corporation. The
AARP--the American Association of Retired Persons--is a corporation.
People for the Ethical Treatment of Animals is a corporation. Amnesty
International is a corporation. Americans United for Separation of
Church and State is a corporation. The Gay & Lesbian Advocates &
Defenders is a corporation. The National Organization for Women is a
corporation. The Center for Reproductive Rights is a corporation. The
Sierra Club is a corporation. La Raza is a corporation. NARAL is a
corporation. Planned Parenthood is a corporation. Moveon.org is a
corporation. The Human Rights Campaign is a corporation. Greenpeace is
a corporation.
People will note that every one I listed is a group that in our
political discourse is often associated with being on the left. Many of
those groups are not particular fans of mine as an elected official,
and that is their right. Indeed, it is their right to scream from the
mountaintops their criticism of my political positions. I will defend
their right to criticize me or any other Member of this body all day
long because the Bill of Rights says Congress shall make no law
abridging the freedom of speech.
Forty-nine Democrats just said that every organization I read--that
it should be constitutional for Congress to prohibit them from speaking
about politics.
It seems to me that when we return to our home States, every Senate
Democrat who put his or her name to this amendment should expect to
answer questions from citizens: Senator, why did you vote for a
constitutional amendment to silence my free speech rights? That is a
question we should all expect.
I would like to address a couple of red herrings in this debate
because there are arguments put forth by the Democrats who say: No, no,
no. Pay no attention to the text of the amendment we have introduced.
Pay no attention to the fact that it would give Congress the power to
ban movies, books, and to silence the NAACP. Pay no attention to any of
that. It is something else.
There are three red herrings that are tossed forward.
First, money is not speech. How many times have we heard that over
and over in floor speeches? Yesterday and today Democrats have stood
and said: Money is not speech. Money is not speech. It has been
repeated over and over. It is a good talking point. It is simply, on
its face, demonstrably false. It is certainly true that all money is
not speech.
If you go out and buy a Ferrari, that is not speech, but if you go
out and erect a billboard and pay money to put up a billboard that says
``Senator Joe Manchin is a terrific guy,'' that is speech. It takes
money to do that. They don't put up billboards with pixie dust. It
actually takes some dollars to erect that billboard and to express that
speech.
If you decide you want to run a radio ad saying that Senator so-and-
so is terrible or wonderful, they don't run radio ads just because you
asked ``pretty please.'' It takes money.
Let's say you want to run a television ad. It takes money.
Let's say you want to launch a Web site. Have you ever launched a Web
site for free?
Let's say you are a little old lady who wants to put a yard sign on
your front yard, and it is going to take $5 to buy some poster board
and a stick and some crayons and markers and write: I love the First
Amendment; I love free speech. That takes money.
The Federalist Papers were the essence of speech, and it took money
to print them. Thomas Paine's ``Common Sense''--it took money to print
it. It took money to print pamphlets.
Everyone in the tech community--and I would note that all of our
Democratic friends and sponsors of this amendment almost to a person go
routinely to the tech community and say: Give us money. Give us
campaign contributions.
Every Senate Democrat should expect the tech community to say: Wait a
second. Why did you vote for a constitutional amendment to give
Congress the power to regulate every Web site in America?
If a Web site talks about politics, this amendment gives Congress the
power to regulate that Web site.
Listen, I understand there are Members in this body on both sides of
the aisle who find it really pesky when citizens dare criticize us. If
you don't want to be criticized, don't run for office. Democracy is
messy.
I guarantee there is no one in this country who truly believes money
is not speech. It is a talking point, but those examples are
unquestionably speech, and they have been from the very first days of
our Republic.
A second canard is that corporations are not people. That is often
said. Citizens United said that corporations are people.
Of course corporations are not people, but that is not the right
question. It never was the question. Nobody thinks corporations are
people. They don't breathe, they don't walk, and they are not human
beings. The question is, Do corporations have rights under our
Constitution? Again, I guarantee that every person in this Chamber and
every person in the gallery believes the answer to that question is
yes. If they don't, the New York Times is a corporation. Do we really
think the New York Times has no First Amendment rights?
If the canard were true--corporations are not people, so they don't
have rights--Congress could pass a law tomorrow that says the New York
Times can never again criticize any Republican Member of Congress. I
think the paper would probably go out of publication if it had to
remove that from its content.
But it, of course, cannot. Why can't it? Because corporations have
rights. Every one of us knows that. We would be horrified. That
legislation would be blatantly unconstitutional. Why? Because the New
York Times has a First Amendment right to speak about politics however
it likes, whether wrongheaded or right-headed.
The groups I mentioned before--the NAACP is a corporation. I
challenge any Senator to stand and say the NAACP has no First Amendment
rights. But every Senator who has said on this Senate floor that
corporations
[[Page S5417]]
aren't people, that they have no rights, has said the NAACP has no
constitutional rights--if you were a first-year law student and put
that answer in any constitutional law class in the country, you would
get an F. It wouldn't be a D-plus or a D-minus; it would be an F. It is
an obviously blatantly false statement. Yet 49 Democrats rely on it to
justify trying to gut the First Amendment.
The third red herring the Democrats in this body point to is they
paint a specter of evil billionaires coming to steal our democracy.
We have all heard of our friends the Koch brothers--in part because
the majority leader has launched an unprecedented slander campaign on
two private citizens. Almost on a daily basis the majority leader
stands and demagogues two private citizens who have committed the sin
of creating hundreds of thousands of jobs, being successful in the
private sector, and then exercising their First Amendment rights to
speak out about the grave challenges facing this country.
If one Member of this body impugns the integrity of another Member of
this body, we can rise on a point of personal privilege. I ask the
Presiding Officer, where is the point of personal privilege for a
private citizen when the majority leader drags his name through the mud
day after day?
What Senator Reid is doing to two private citizens who are fighting
to exercise their free speech rights is reprehensible. It is an
embarrassment to this institution. Yet perhaps one might say there is
some truth to the matter. We are told these nefarious brothers are
responsible for almost everything bad in the world, so it must be that
they are playing a huge role in our body politic.
Well, if you go look at OpenSecrets, which compiles campaign giving
from 1989 to 2014, so for the past 25 years--and it compiles them from
the biggest givers down to the smallest givers--if you look at first 16
names on that list--I have heard what our Democratic Members of this
body have said: There are evil, nefarious Republicans trying to steal
our democracy. And the implication is that they are backing
Republicans. So my assumption is, as I look at the list of the top
donors, the top 16--how many of them give predominantly to Republicans?
Well, one would assume, given how great the magnitude is, that it has
to be a lot of them, probably all of them, or if not all of them, most
of them--at least half of them.
Mr. President, do you know how many of the top 16 groups give
predominantly to Republicans? Zero. The top 16 political donors in this
country all give either overwhelmingly to Democrats or at best evenly
between the two parties. You have to fall to No. 17 to find a group
that gives more heavily to Republicans than to Democrats. Now, that is
curious given the story that is being told by our Democratic friends
about these evil Republican billionaires stealing democracy. Gosh, the
top 16 donors are not Republicans.
And how about the Koch brothers who we are told are somewhat like the
Grinch who stole Christmas? Where do they fall? We have to go down to
No. 59 on the list to find Koch Industries.
But perhaps you believe there is something to this claim of secret
money. That too is a red herring. The Federal Election Commission
estimates that over $7 billion was spent in the 2012 election cycle. We
have heard from Democrat after Democrat after Democrat that secret
money--money where the donors are not disclosed--is this enormous
problem in our democracy that justifies gutting the First Amendment. So
of that $7 billion, I assume a lot of that is secret money. Well, if
you were to assume that, you would be wrong. The Center for Responsive
Politics estimates that in 2012 about $315 million was spent by groups
that do not disclose all of their donors. That is less than 4.5 percent
of all the political speech in 2012.
So this entire effort to gut the First Amendment, to give Congress
the power to ban movies, books, and the NAACP from speaking about
politics is justified because of 4.5 percent of political spending, a
whole bunch of which is being spent to help Democrats. Those are the
facts. As John Adams famously said: Facts are stubborn things.
(Ms. WARREN assumed the Chair.)
So it raises the question: If the problems they are telling us about
are not real, why are the Democrats doing this? Why are we spending a
week debating this constitutional amendment, the most radical
constitutional amendment this body has ever considered, particularly
because every single Member of this body knows the outcome? There are
not sufficient votes to adopt this amendment. The Democrats all know
this. The Republicans all know this. Then why would they be doing it?
Well, if you are a Democrat running for reelection in 2014, you
cannot run on the economy. The Obama economy is a disaster. Millions of
people are out of work. The people who have been hurt the most by the
Obama economy are the most vulnerable among us--young people,
Hispanics, African Americans, single moms. We have not seen such a low
labor force participation since 1978, since the stagnation and misery
and malaise under Jimmy Carter. The Obama economy has recreated that.
So if you are a Democrat, you cannot run on the disastrous economic
record of the Obama administration.
If you are a Democrat, you certainly cannot run on ObamaCare--the
most harmful social services legislation in modern times that has cost
millions of Americans their jobs, their health care, their doctors. If
you do not believe me, take a look at how the Democrats are running in
their States. You do not see Democrats running saying: We passed
ObamaCare. When you take away millions of people's health care and
doctors, and when you look in the TV camera and repeatedly state
falsehoods: If you like your health insurance plan, you can keep it, if
you like your doctor, you can keep them, you do not really want to
remind the American people that you deliberately lied to them.
And the Democrats certainly cannot run on the Obama-Clinton foreign
policy--a policy about which we heard last week the President has no
strategy for dealing with the great threats facing this country.
Leading from behind is not a strategy, and we can see the consequences
of the Obama-Clinton foreign policy, which is that the entire world is
on fire.
If you are a Democratic Senator running for reelection in 2014, you
have a problem. You cannot run on your record because the record is
abysmal. So what is done instead? It is smoke and mirrors. It is
distraction.
The only explanation I can come up with for why we are spending a
week--with all the challenges in the world--a week debating an
amendment that will never ever pass is this is designed to fuel a bunch
of TV commercials for Democratic Senators, to paint the picture of
nefarious billionaires coming to steal our democracy. Facts do not get
in the way of their story. But yet the breadth of this is rather
enormous.
I serve on the constitution subcommittee with the Senator from
Minnesota, who before being a Senator was a very talented comedic actor
and comedic writer on ``Saturday Night Live.'' I grew up watching
``Saturday Night Live.'' I love ``Saturday Night Live.''
``Saturday Night Live'' over the years has had some of the most
tremendous political satire--for decades. Who can forget Chevy Chase
tripping and falling over just about everything? Who can forget
portrayals--Dana Carvey's George Herbert Walker Bush: ``Not going to do
it.'' Who can forget Bill Clinton, Ronald Reagan, Al Gore? Who can
forget in 2008 the ``Saturday Night Live'' wickedly funny
characterization of the Republican Vice Presidential nominee Sarah
Palin? It was wickedly funny and also had a profoundly powerful effect
on people's assessment of Governor Palin, who is a friend of mine.
When I asked the Senator from Minnesota in the Senate Judiciary
Committee: Do you believe that Congress should have the constitutional
authority to prohibit ``Saturday Night Live'' from making fun of
politicians, the good Senator promptly reassured me he had no intention
of doing any such thing. But what we are debating is not the intentions
of 100 Senators. What we are debating is a constitutional amendment
that 49 Democrats are proposing to be inserted into the Bill of Rights.
The only question--it is not the intention of those Senators--but,
rather, what would that amendment say? What the amendment says is for
any corporation Congress would have the constitutional authority to
prohibit it from engaging in political speech.
[[Page S5418]]
Well, NBC, which airs ``Saturday Night Live,'' is a corporation.
Under this amendment 49 Democrats have signed their name to, Congress
would have the power to make it a criminal offense. Lorne Michaels
could be put in jail under this amendment for making fun of any
politician. That is extraordinary, it is breathtaking, and it is
dangerous.
The idea of banning books is not new. Advocates of government power,
statists, have long favored silencing the citizenry. It is why our
First Amendment was such a revolutionary concept, the idea that the
individual citizen has the authority to challenge any elected official,
from local magistrate all the way up to the President of the United
States.
But if you are an advocate of governmental power, the citizens having
the liberty to speak out is inconvenient; it can lead to inconvenient
truths. So on some level it should not be surprising that the modern
Democratic Party, which has become the party of government power over
every aspect of our lives, would take it to the final conclusion of
giving government the power to silence our political speech and to ban
books.
I am reminded, in Ray Bradbury's immortal book ``Fahrenheit 451,'' of
the words of Captain Beatty: ``If you don't want a man unhappy
politically, don't give him two sides to a question to worry him; give
him one. Better yet, give him none.'' That was, of course, the chief
fireman in charge of burning books in ``Fahrenheit 451.'' In the book
that is the temperature at which book paper ignites. It breaks my heart
that today we are seeing the Fahrenheit 451 Democrats. Today we have
seen 49 Democrats put their name to a constitutional amendment that
would give Congress the power to ban books.
Some might dismiss it and say: What does it matter? It is an exercise
in politics. They do not really believe it. They know it is not going
to pass. Politicians will be politicians. No wonder the American people
are cynical. I would be embarrassed if one Senator put his or her name
to an amendment repealing the free speech protections of the First
Amendment. Instead of one, it is 49. And much like with Sherlock Holmes
and ``the dog that didn't bark,'' every bit as troubling as the 49
names of the Senators who are willing to repeal the free speech
protections of the First Amendment are the Senators who are not
speaking out. In particular, we have not seen a single Democrat have
the courage to speak out against this abominable provision.
It was not always so. There was a time not long ago when there was
bipartisan agreement on questions of civil liberties. There was a time
when you could find Democrats for whom the First Amendment meant
something.
In 1997, Democrats attempted a similar amendment to give Congress the
power to regulate free speech, and that lion of the left Ted Kennedy
stood up and said: ``In the entire history of the Constitution, we have
never amended the Bill of Rights, and now is no time to start.''
Where are the Ted Kennedys? Where are the Democrats? Where are the
liberals?
Also in 1997, Senator Russ Feingold, another passionate liberal,
stood up and said:
. . . the Constitution of this country was not a rough
draft. We must stop treating it as such. The First Amendment
is the bedrock of the Bill of Rights. It has as its
underpinnings that each individual has a natural and
fundamental right to disagree with their elected leaders.
I agree with Ted Kennedy, I agree with Russ Feingold, and I will tell
you, privately I have urged Democratic colleagues to come and join me
in defense of the First Amendment--the handful who have not put their
names to this amendment--and all I can surmise is that the partisan
pressures of Washington are too much.
This amendment is not going to pass, but it is profoundly dangerous
that in the U.S. Senate not a single Democratic Senator will come to
the floor in defense of the First Amendment. It is profoundly dangerous
that the modern Democratic Party now thinks it is good politics to
campaign on repealing the First Amendment. The hashtag #don'trepeal1A
has echoed through twitter as individual citizens are amazed.
Earlier this year we saw all 55 Democrats stand together against
religious liberty, supporting an amendment that would gut the Religious
Freedom Restoration Act which was passed with overwhelming bipartisan
support and signed into law by Bill Clinton.
It used to be on religious liberty there was a bipartisan consensus.
The same used to be true on free speech. When did Democrats abandon the
Bill of Rights? When did Democrats abandon civil liberties? I assure
you, if it were my party proposing this egregious amendment, I would be
standing on the floor of this Senate giving the very same speech trying
to hold my party to account. Because at the end of the day, when we
take our oath of office, it is not to a Democratic Party or the
Republican Party, it is to represent the citizens of our State--in my
case, 26 million Texans--to fight for their rights and to defend and
uphold the Constitution of the United States.
There is nothing the United States has done in the just under 2 years
that I have been in this body that I find more disturbing and more
dangerous than the fact that 49 Democrats would put their name to a
proposal to repeal the First Amendment.
When my daughters Caroline, 6, and Catherine, 3, came up from Texas
to Washington for a weekend to visit, I took them to the Newseum. It is
a terrific museum. The front facade of the Newseum has in gigantic
letters the text of the First Amendment carved in granite.
If the Democratic Party has its way, the Bill of Rights will be
forever altered. We will have to send up workmen to that facade to
carve with jackhammers the words of the First Amendment out of the
granite in the front of the Newseum.
In the Senate Judiciary Committee I introduced a substitute
amendment. It was an amendment to replace every word of this
extraordinarily dangerous amendment with the following words:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
It was word-for-word verbatim the text of the First Amendment of the
Constitution of the United States, and I am sorry to tell you every
single Senate Democrat on the Judiciary Committee voted against the
text of the First Amendment. It was a straight party-line vote.
Going back to Senator Kennedy, Senator Kennedy and I would have
agreed on very little. On matters of policy, he was a big government
man and I most assuredly am not. On matters of foreign policy, he
supported a far weaker military than do I and a far weaker defense of
our Nation. But on the question of the First Amendment, I am proud to
stand side by side with Ted Kennedy.
What does it say about the modern Democratic Party that not a single
Democrat is willing to honor Senator Kennedy's legacy? His words are
every bit as true now as they were in 1997.
In the entire history of the Constitution, we have never
amended the Bill of Rights, and now is no time to start.
It is my plea to the Democratic Members of this body that they
reconsider the decision of putting their name on this amendment. It may
seem like harmless election-year politicking that will help in
political campaigns, but it is dangerous when 49 Senators come together
and say: We no longer support the First Amendment.
We have a two-party system--a two-party system on which there should
be robust debate. It is even more dangerous when one of the two parties
becomes so extreme and so radical that it becomes seen as good politics
to campaign against the First Amendment.
This will not pass this week, but I hope my Democratic colleagues
will have second thoughts. I hope we can return to the day where there
is a bipartisan consensus in favor of civil liberties, in favor of
protecting the free speech rights of every American.
I hope we will listen to the wise counsel of Senator Kennedy, and I
hope we will recognize, as Senator Kennedy and Senator Finegold
observed, that there are no James Madisons or Thomas Jeffersons serving
in this body today.
The Bill of Rights is not a rough draft, and the U.S. Senate should
not
[[Page S5419]]
be proposing to repeal the First Amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Madam President, listening to the good Senator from
Texas, I feel as though I am in a parallel universe.
I rise to support S.J. Res. 19, an amendment to the U.S. Constitution
that ensures our democracy is for the people--for the people, not for
corporations.
I am proud to cosponsor this measure. I am also proud to stand with
the overwhelming majority of this country in support of restoring
commonsense and fair campaign finance rules.
The current Supreme Court has been noted as among the most pro-
corporate Supreme Courts in our history. In decision after decision, a
narrow conservative majority of the Court has placed the voices of the
corporations and special interests over the voices of the people.
The Court decided Citizens United in 2010. Corporations are people
with free speech rights, said the Court's 5-to-4 majority. Under this
construct that corporations are people, this ruling, Citizens United,
granted special interests the right to use corporate treasuries to
drown out the voices of the people without being subject to meaningful
disclosure requirements.
We have already seen the impact of this decision. According to the
Center for Responsive Politics, this election year outside groups have
spent triple the amount they had at the same time in 2010, and the
election is still months away.
The Court thrust the floodgates even wider with the ruling in the
McCutcheon case. This ruling struck down aggregate limits on
contributions by individuals. So now billionaires could spend hundreds
of millions of dollars to influence elections--and they are doing just
that.
In these two decisions, the majority willfully ignored the reality of
the corrupting influence of Big Money in our democracy. It is clear to
me that the Court got it wrong in both cases. To fix what has been
done, Congress must act.
The need for action is not just a Democratic or Republican issue.
Nearly 80 percent of Americans support overturning the Supreme Court's
Citizens United decision. Campaign spending is out of control, and the
American people strongly support reform. Seventy-one percent believe
that individual contributions should be limited, and 76 percent believe
that spending by outside groups should also be limited.
The American public is clear on this issue. Only in Washington, DC,
has this become such a polarized debate. Unchecked and unaccountable,
spending on campaigns impacts politics and policy across the country,
even at the State and local levels. From Arizona to Montana to my home
State of Hawaii, the Supreme Court's extreme decisions on campaign
finance are undermining fair, democratic processes.
The Citizens United and McCutcheon cases also limit the ability of
Congress and the States to fix the problems caused by these decisions.
Why? Because the Supreme Court has decided that unfettered spending in
elections is a constitutional right. So the only way we can fix these
wrong decisions is by amending the Constitution.
The Supreme Court's majority claims that allowing unlimited spending
in elections is essential to protecting the First Amendment, that
unlimited spending by corporations and individuals is a constitutional
right.
Guess what. Before the Supreme Court's decision in Citizens United
and McCutcheon, the First Amendment and constitutional rights were
alive and well. So the Court argued that restricting campaign spending
would limit the right of individuals and groups to participate in our
democratic process--never mind that they have been participating in our
democratic processes before these decisions.
In reality, these rulings institutionalize the power of Big Money in
politics at the expense of regular Americans. The Court's decisions
have the effect of saying that in our democracy those with the most
money should have the loudest voices and that the very identity of
those voices can be hidden from the voters. The huge undisclosed
expenditures that these decisions allow have diluted the core principle
of democracy: one person, one vote.
The vast majority of the American people disagree with the Supreme
Court's unprecedented interpretation of the First Amendment. The Court
has left us with the option we are pursuing today--amending the U.S.
Constitution. When the Supreme Court said that women did not have the
right to vote, Congress and the people passed the 19th Amendment. So
amending the Constitution to protect our democracy is not some new or
radical idea. When the Supreme Court said States could impose poll
taxes on the poor, Congress and the people passed the 24th Amendment,
and the list goes on. Why? Because the Supreme Court is made up of
human beings, and as human beings they sometimes get it wrong, as they
did in the Citizens United and McCutcheon decisions.
As retired Justice John Paul Stevens wrote in his dissent to Citizens
United:
The Court's opinion is thus a rejection of the common sense
of the American people, who have recognized a need to prevent
corporations from undermining self-government since the
founding, and who have fought against the distinctive
corrupting potential of corporate electioneering since the
days of Theodore Roosevelt.
Justice Stevens has it right and so does the overwhelming majority of
Americans. Republicans, Democrats, and Independents all agree that the
Court's ruling in Citizen's United and McCutcheon stand for something
that is completely inconsistent with America's Constitution, history,
and values. I say that the First Amendment was alive and well before
the Citizens United and the McCutcheon decisions.
The constitutional amendment before us does not repeal anything in
the Constitution; rather, it undoes the damage that five members of the
Supreme Court have done to free and fair elections. By the way, money
buys speech, it is not speech. I urge my colleagues to support S.J.
Res. 19.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. UDALL of New Mexico. Thank you, Madam President. Let me first say
how much I appreciate all of my colleagues coming to the floor and
talking about this amendment. Senator Hirono is here. I know Senator
Whitehouse is coming down. A number of Senators have come down and
spoken very eloquently. The Presiding Officer has also taken a good
strong position and we so much appreciate all of her good work.
An earlier speaker said that the NAACP is against this amendment. In
fact, the NAACP is for this amendment.
I ask unanimous consent to have printed in the Record a statement off
their Web page of their endorsement of the constitutional amendment I
am going to talk about.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the NAACP.org]
Constitutional Amendment To Limit Corrupting Role of Big Money
Contributions to Political Campaigns
S.J. RES. 19/H.J. RES. 20, WOULD MAKE CLEAR THAT CONGRESS, INDIVIDUAL
STATES AND THE AMERICAN PEOPLE HAVE THE AUTHORITY TO MEANINGFULLY
REGULATE CAMPAIGN FINANCE
It is no secret that the role of money in politics is ever
increasing, and that money plays a major role in who stands
for office, who wins, and, most critically, the eventual
public policy Congress enacts. With the decisions by the U.S.
Supreme Court in the 2010 Citizens United v. Federal Election
Commission (FEC) and 2014 McCutcheon vs. FEC cases, the role
of big money, donated by wealthy corporations and
individuals, will only continue to grow.
Because it is becoming increasingly clear that income and
wealth inequality is rooted in political inequality, the
NAACP strongly supports several legislative initiatives--
including H.R. 20, the Government By the People Act, and S.
2023, the Fair Elections Now Act, which put voluntary curbs
on campaign spending. Together, these two bills are
comprehensive reform packages designed to combat the
influence of big money politics, raise civic engagement and
amplify the voices of everyday Americans.
Yet some have concerns about the voluntary nature of these
bills--candidates may opt out of participating and adhering
to limits on the amounts raised and spent Thus, in addition
to supporting the legislation, the NAACP supports a
constitutional amendment that would make clear that Congress,
individual states and the American people have the authority
to meaningfully regulate campaign finance and to restore
transparency and safeguard the role of individual
[[Page S5420]]
voices in our elections. The constitutional amendment has
been proposed by Senator Tom Udall (NM) (S.J. Res. 19) and in
the House of Representatives by Congressman Jim McGovern (MA)
(H.J. Res. 20).
Amending the Constitution is hard--and it should be. But it
is not impossible. Already 16 states and hundreds of local
governments across the country have called on Congress to
take action, showing strong public support for reform from
all sides of the political spectrum. Furthermore, supporters
of a Constitutional amendment have been promised a vote by
the full Senate on S.J. Res. 19 before the end of the year.
Mr. UDALL of New Mexico. Thank you, Madam President.
Some of our opponents have come down to the floor and asked: Why do
this now? Why bother? I would answer: Ask the American people. I think
they will tell you. People are listening--not just Democrats but
Republicans too--all across the Nation. They are listening and here is
what they are hearing. They are hearing that the Supreme Court has put
a for sale sign on our elections. They are hearing our political
process is on life support, drowning in cash, and most of it coming
from just a few people.
Sixty percent of all super PAC money in 2012 was doled out by 100
billionaires and corporations. They are hearing about elections bought
and paid for by shadowy outside groups given a green light by the
Supreme Court. Special interests are shelling out at least $216 million
in 2014 and likely $1 billion by election day. That is 15 times more
money than in 2006 before Citizens United, before the Supreme Court
defied common sense and said corporations are people. They are hearing
that a lot of money is hidden when over half the money spent in this
year's top nine Senate races is not fully disclosed, over half not
fully disclosed. So in 2 months we will know the outcome of these
elections, but we will not know who paid for them.
The result is not surprising. The American people have lost faith in
us as they watch this merry-go-round, this constant money chasing, and
very little else getting done. This is a vital debate about what
democracy we will have and whether democracy will survive. Will we have
one that caters to billionaires and the privileged few or one that
listens to the American people; one that keeps chasing money from
special interests or one that says it is the quality of our ideas, not
the size of our bank accounts, that should matter; a democracy that
answers to the middle class or to the moneyed class?
This debate is crucial. This debate is absolutely crucial to the
future of our country, and I believe the American people are not only
listening, they are demanding to be heard, because every voice counts,
and that is why the majority of Americans support reform. They know the
system is broken.
There is only one way to truly fix it. Give power back to the elected
representatives of the people, to the Congress, and to the States. We
have a job to do, but the Supreme Court has rendered us powerless to do
it. There is one way to change this, one way for real reform; that is,
a constitutional amendment.
That is what this debate is all about. The Supreme Court opened the
floodgates. The American people want us to close them.
The Huffington Post published an article yesterday titled ``Is
Washington The Only Place Where Campaign Finance Is A Partisan Issue?''
The answer is yes. Poll after poll shows this.
A strong majority of Democrats and Republicans outside of Washington
want reform, Republicans such as my good friend former Senator Al
Simpson from Wyoming. Yesterday The Hill published an op-ed that Al and
I wrote together. As most people know, he has always been someone to
speak his mind. When Al edited our draft he added that ``the playing
field in our democracy is far from level, and that is driving cynicism,
disgust, and mistrust of the political process to dangerous levels.''
Sadly, he is right. It is time for us to listen to our constituents.
Over 3 million people have signed petitions in support of a
constitutional amendment. There are 16 States, over 550 cities and
towns pushing for reform, demanding a more level playing field and
fairness, including 75 percent of the voters in Montana, a State where
Mitt Romney won by a 10-point margin. So this is a partisan issue only
in Washington and in the backrooms of billionaires determined to keep
the money flowing and the influence intact.
So opponents have ramped up the noise and distraction about the First
Amendment and free speech. I would not lose any sleep about
billionaires and their free speech, but a lot of us are up late nights
thinking about the rest of America.
As Justice Breyer wrote in his dissent to McCutcheon, ``Where enough
money calls the tune, the general public will not be heard.'' Too many
Americans feel they are not being heard. The First Amendment has
already been hijacked. Our amendment rescues it.
Congress has a long history of regulating campaign finance, of doing
its job and standing up to Big Money and powerful interests. We can go
all the way back to 1867, and later with the Pendleton Act, the Hatch
Act, the Bipartisan Campaign Act of 2002--a long history and I would
argue an honorable one, and without banning books, suppressing
teachers, suppressing preachers or shutting down newspapers. Reforms
have been modest, reasonable, and responsive, passed by both Houses of
Congress, signed by the President.
The other side can talk about imaginary horribles. That is one way to
go. But that argument is not supported by history, by logic or by the
law. Our amendment is not radical. It is a simple idea. It will give
power back to the elected representatives of the people, to Congress,
and to the States. That is it, period.
What is so terrifying about this? Not one thing, except for wealthy
special interests that have their place at the table bought and paid
for and want to keep it. That is the bottom line. They oppose any
reforms, any restrictions on campaign spending. They are listening too.
Their message is very clear and unyielding: No reform. None. They want
to keep writing their checks and staying at the head of the table.
This debate is about special interests trying to buy elections in
secret with no limits. The Supreme Court says that is just fine. We
say, no, in fact, it isn't. Our amendment has a long bipartisan
tradition back to 1983 when Senator Ted Stevens, a Republican, was the
lead sponsor. It is common sense. It is fair.
We do not dictate specific reforms. We do say Congress has a duty and
a right to enact sensible campaign finance reform. Any specific
proposals are debatable and answerable to the American people. This
amendment has the support of most Americans because they understand
beyond all the noise, beyond all the tortured logic of our opponents
that we have a train wreck and we need to get the train back on track
before yet another scandal, before we are back in the Watergate era.
The voice of Americans should not be drowned out by billionaires
lobbying for favors, hiding in the corner with gold-plated megaphones.
It is time to limit the power of Big Money, to give everyone a say, not
just the rich, not just the powerful--everyone.
Americans are listening, they are watching, and they are waiting
because they know and we know a simple truth: We cannot hand over our
democracy to the biggest spender.
Thank you, Madam President.
I ask unanimous consent to have printed in the Record the op-ed I
mentioned authored by myself and Senator Simpson and that the
Huffington Post article I referenced be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From thehill.com, Sept. 8, 2014]
Bipartisan Case for a Constitutional Amendment on Campaign Finance
(By Sen. Tom Udall (D-N.M.) and former Sen. Alan Simpson (R-Wy.))
Following recent U.S. Supreme Court decisions dismantling
our nation's campaign finance laws, all Americans are
certainly not equal on Election Day. With 5-4 split
decisions, the court has given corporations the ability to
spend unlimited money to persuade voters, and also declared
limits on large donations to be the equivalent of
infringement on speech. The result is an electoral system in
which a billionaire can influence elections across the
country, while regular voters have just one shot--by casting
a single ballot.
This is surely not the equality as envisioned by our
founders, who would be appalled by corporate spending in
elections and unlimited personal donations by billionaires.
The solution is to clarify the Constitution so that the
people may decide how, when and why to regulate campaign
finance. This
[[Page S5421]]
week, the Senate will vote to begin debate on a
constitutional amendment which now has the support of nearly
half the Senate, 16 states and over 550 municipalities,
including large cities like New York, Los Angeles, Chicago
and Philadelphia--all of whom are sick of out-of-control
spending in elections and disturbed at the direction the
court has taken.
The original and honest intent of our campaign finance laws
is to rein in the culture of money in politics and ensure
that a few donors can't buy an election by spending to
benefit one candidate over another. They are rooted in the
public's disgust with political corruption. Yet the court's
rulings indicate we are headed back to that pre-Watergate era
of corruption. We were troubled that Chief Justice Roberts
wrote in the McCutcheon decision that quid pro quo
corruption--bribery--is the only sufficient justification for
Congress to pass regulations. As a result, we are likely to
see new challenges against laws that limit the amount an
individual may contribute to a candidate, or laws prohibiting
contributions to candidates from corporations. The largest
corporations are multi-national organizations worth hundreds
of billions of dollars and the Supreme Court is leaving us
with no way to set reasonable standards.
McCutcheon is the most recent case, but there is a history
of the court narrowly overturning reasonable campaign finance
laws. In 2010, Citizens United v. FEC gave free speech rights
to corporations and special interests. But this problem goes
all the way back to 1976, when the court held in Buckley v.
Valeo that restricting independent campaign expenditures
violates the First Amendment right to free speech. In effect,
the court said money and speech are the same thing.
This is tortured logic that leads to an unacceptable
result--that a citizen's access to a constitutional right is
dependent on his or her net worth. A result that says the
wealthy get to shout, but the rest of you may only whisper.
The constitutional amendment would make it clear that
campaign finance regulations are up to voters who elect
Congress and state legislatures. It would not dictate any
specific policies or regulations, but instead would protect
sensible and workable campaign finance laws from
constitutional challenges.
Critics have claimed that the amendment would repeal the
First Amendment's free speech protections. But it does the
exact opposite--the proposal is an effort to restore the
First Amendment so that it applies equally to all Americans.
When a few billionaires can drown out the voices of millions
of Americans, we can't have any real political debate.
The amendment would not simply benefit one party or
incumbent. It is similar to bipartisan proposals introduced
in nearly every Congress since 1983, when Republican Sen. Ted
Stevens (Alaska) was the lead sponsor. Over the years, it has
been supported by many Republicans, including Sens. John
McCain (Ariz.), Thad Cochran (Miss.), Arlen Specter (Pa.),
and Nancy Kassebaum (Kan.), as well as many Democrats.
In April, retired Supreme Court Justice John Paul Stevens
said in his testimony before the Senate Rules Committee that
campaign finance regulations ``should create a level playing
field . . . to give rival candidates--irrespective of their
political party and incumbency status--an equal opportunity
to persuade citizens to vote for them.'' Most Americans would
agree with Justice Stevens. However, until the Constitution
is amended, such laws would be struck down by the current
court.
The national debate should not be dictated by a handful of
wealthy individuals and corporations. After the McCutcheon
decision wealthy donors can, and many will, contribute up to
$3.6 million in an election cycle. For an average person
making minimum wage, it would take 239 years to make that
much money. The playing field in our democracy is far from
level, and that is driving cynicism, disgust and mistrust of
the political process to dangerous levels.
Over the course of our Senate careers, spending on
campaigns has gotten out of control. According to a joint
study by Brookings and the American Enterprise Institute,
outside groups spent $457 million to influence Senate and
House races in 2012. In the 1978 election, when Senator
Simpson was first elected, outside groups spent only
$303,000. There is a deeply troubling trend here, and we
cannot let it continue.
Amending the Constitution is difficult--as it should be--
but it is long past time to have an honest and thoughtful
national dialogue about our broken electoral process and how
we voters can fix it.
____
[From the Huffington Post, Sept. 8, 2014]
Is Washington the Only Place Where Campaign Finance Is a Partisan
Issue?
(By Paul Blumenthal)
Washington.--The Senate voted Monday to debate a
constitutional amendment overturning the Supreme Court's 2010
Citizens United decision and allowing Congress and the states
to enhance limits on the amount of money raised and spent in
elections. The proposed amendment is nearly universally
supported by Democrats and opposed by Republicans.
Division over the role of money in politics, however, is
far less severe among the broader populace. In fact, the
majority of Americans in both parties say they think there is
too much big money in politics and support the rationale
offered by amendment proponents as a reason to amend the
Constitution.
The amendment up for Senate debate would roll back Supreme
Court rulings on campaign finance from the 1976 Buckley v.
Valeo decision that first applied First Amendment free speech
protection to money raised and spent in elections. That
decision allowed Congress to limit contributions, but held
that spending limits were a burden on spenders' free speech
rights.
Americans appear to broadly disagree that money used in
political campaigns should be protected by the First
Amendment.
In February 2013, 55 percent of respondents to a HuffPost/
YouGov poll said they did not consider ``money given to
political candidates to be a form of free speech protected by
the First Amendment to the Constitution.'' Just 23 percent
agreed that campaign contributions were a form of free
speech.
That poll touches only on the issue of campaign
contributions. The main issue supporters of the
constitutional amendment have with the Buckley decision and
subsequent court rulings is the full free speech rights
granted to campaign spending.
A Gallup poll taken in June 2013 found that 79 percent
supported limiting both the amounts politicians can raise and
the amounts they can spend. This was supported at almost
equal rates by Democrats, Republicans and independents, and
in every part of the country.
There also are a handful of polls commissioned by groups
campaigning for the amendment that asked more specific
questions. In one such poll, the reform group Public Citizen
released findings in August showing 55 percent in support of
a constitutional amendment to overturn the Citizens United
decision. Support topped so percent for Democrats,
Republicans and independents.
The divide between Republican voters and their
representatives in Washington also can be seen at the state
and local levels. The pro-amendment group Free Speech For
People has compiled a list of 137 current and former state
Republican officials who support an amendment to enhance
limits on campaign finance.
This list includes a number of Republican officials who
voted for resolutions in support of an amendment to overturn
Citizens United and establish other limits to campaign
finance. Overall, 16 states have backed resolutions calling
for an amendment.
In Colorado and Montana, the resolutions were sent to the
electorate as ballot initiatives in 2012. In both states--one
a tossup in presidential elections, the other solid red--more
than 70 percent of voters approved the resolutions. In both
states, the amendment outpolled both President Barack Obama,
the victor in Colorado, and Mitt Romney, who won Montana.
Mr. WHITEHOUSE. Madam President, may I ask that at the conclusion of
Senator Walsh's remarks I be recognized?
The PRESIDING OFFICER. Without objection.
The Senator from Montana.
Mr. WALSH. I rise to speak in support of S.J. Res. 19, a
constitutional amendment that would give both States and Congress the
power to undo the damage caused by Citizens United and restore our
Democratic traditions.
Passing this amendment is vital if we are going to begin to roll back
the coercive influence of money in our democracy. Because of the
Supreme Court's decision in Citizens United, political power has become
increasingly concentrated in the hands of corporations and modern-day
copper kings. In fact, less than 1 percent of Americans provide over
two-thirds of the money spent on elections. The voices of everyday
Americans are simply being silenced.
In Montana we have seen firsthand the damage to the process. Turn-of-
the-century mining companies made rich off the copper seams in Butte,
MT, my hometown, bought up the State press and bought off the State
legislature. In response to these abuses, Montana banned corporate
political spending by citizen initiative over 100 years ago. However,
the recent Supreme Court's Citizens United decision overturned this
century-old protection in an instant, silencing Montanans' voices with
dark, secretive money and corporate political spending.
Montana's experience with the Butte copper kings shows that corporate
political spending, even if it is supposedly independent, corrupts the
political process. We cannot let anonymous, unaccountable corporate
spending drown out the voices of everyday Americans. When the voices of
individual voters become less relevant to politicians, policy decisions
are divorced from the folks they impact.
We simply cannot allow a dysfunctional system of campaign finance to
eliminate our government's responsiveness to its citizens or its
ability to tax our most pressing issues. Montana's history should be
learned from, and it is our responsibility to ensure it never happens
again.
[[Page S5422]]
That is why this amendment is so important to the American people. In
2012 Montana voters overwhelmingly directed the congressional
delegation to work to overturn Citizens United to get corporate money
out of politics. I have heard from thousands of Montanans that they
want Congress to refocus on issues that are important to them, to come
together and to do our jobs. Passing this amendment will help us do
just that.
Thank you. I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Madam President, before I given my ``Time to Wake
Up'' speech, I want to react to something that was said on the Senate
floor about this joint resolution to correct the error of Citizens
United. What was said on the floor was that the position of those of us
who support this joint resolution and who think Citizens United was
wrongly decided, that our position is an attack on the First Amendment,
that we are attacking the First Amendment. That may have some
rhetorical utility, but it is simply not accurate.
The very question we are here to answer is whether the First
Amendment properly allows unlimited corporate spending. It never did.
It never did until Citizens United came along. So the question before
this body is, Was Citizens United correctly decided?
To say we are attacking the First Amendment is to presume that
Citizens United was correctly decided. You don't win an argument by
presuming you are right; you win an argument by making the case why you
are right.
Frankly, I have great reverence for the First Amendment, and I think
it is extremely unfortunate that an argument would be made that is
really nothing more than a rhetorical trick and does not respond to the
gravamen of the dispute, which is whether the First Amendment should
protect unlimited corporate spending when in the history of this
country--until the decision by Citizens United--it never had.
Tribute to Aaron Goldner
Before I continue, I wish to express my gratitude to Dr. Aaron
Goldner. He has been instrumental in helping me research and prepare
the ``Time to Wake Up'' speeches, and his fellowship in my office came
to an end yesterday.
Aaron earned his Ph.D. in Earth, atmospheric, and planetary sciences
at Purdue University. He came to my office as an American member of the
Geophysical Union Congressional Science Fellow, whose research
specialty was the development of sophisticated models to help build
greater understanding of the past, present, and future effects of
carbon pollution on our climate.
He lent his considerable scientific expertise and analysis to these
floor speeches. He also did research for legislation and prepared for
hearings in the Environment and Public Works Committee. Since we
apparently somehow were not keeping him busy enough, he managed to find
the time to publish a peer-reviewed article over the summer in the
prestigious journal Nature on the climatic conditions surrounding the
origination of the Antarctic ice cap.
Aaron said this week as he left that he gained a sense of humor
working here, which is probably fitting for a scientist having to deal
with this body in its present state.
I gained the benefit of Aaron's hard work and gracious spirit, and
the Senate and the American people gained the benefit of Aaron's
passion for bringing the best scientific thinking to address our
greatest challenges.
Aaron is now taking his talents to the Department of Energy, where he
will continue to help our government tackle these important questions.
I am grateful for his service in my office and wish him the best
success.
Climate Change
The 113th Congress is now winding down, an election is upon us that
will decide the makeup of the next Congress, and I am here for the 77th
time to say it is time for my Republican colleagues to wake up to the
threat of climate change both for the good of our country and our world
and ultimately for the good of their own party. No political party can
long remain a credible force in our democracy if their position on one
of the defining threats of our time is to deny its existence or to
plead total ignorance about it. ``I am not a scientist,'' some have
begun to say. Well, when it comes to interfering with women's rights,
they don't say, ``I am not a gynecologist.'' But when it is carbon
pollution, they say, ``I am not a scientist.'' Some would say that if
you are not a scientist, all the more reason to listen to the
scientists.
Look at what the scientists are saying today. The top person at the
World Meteorological Organization, which knows a little bit about this
area, just said:
We know without any doubt that our climate is changing and
our weather is becoming more extreme due to human activities
such as the burning of fossil fuels.
Here is the point: ``I am not a scientist'' is not the stance of a
party that is ready to lead; it is the stance of a party that is
beholden to polluting interests, petrified of losing the millions in
polluter campaign spending supporting their candidates.
We have heard over and over during the last 6 years that Republicans
want President Obama to lead. It is a familiar chorus: ``It is time to
lead.'' ``Where is the leadership?'' ``Why isn't America leading?''
One of my Republican Senate colleagues put it this way:
Every American can agree that the light of peace and
liberty would benefit our world. But who will spread it if
not America? There is no other Nation that can, and that is
why, despite the challenges we face here at home, America
must continue to hold this torch. America must continue to
lead the way.
Well, on climate change we are finally leading the way thanks in
large part to President Obama's Climate Action Plan and Secretary
Kerry's passionate efforts. Yet they criticize the Obama
administration's leadership on climate change because other countries,
such as China and India, are also big carbon emitters. So Republicans
want America to lead except on climate change. On this one issue they
would prefer to await leadership from China or India. How convenient
that is when you think of all the polluter money funding the
Republicans and how badly out of step with America. Just look at the
numbers. A recent Wall Street Journal poll showed--notwithstanding
years of relentless polluter propaganda--that 61 percent of Americans
agree that climate change is occurring and that action should be taken,
and 67 percent of Americans support the administration's proposed rule
to limit carbon pollution from powerplants.
Here is my personal favorite: A survey conducted for the League of
Conservation Voters found that more than half of young Republican
voters--to be specific, 53 percent of Republicans under the age of 35--
would describe a politician who denies climate change is happening as
``ignorant,'' ``out of touch,'' or ``crazy.'' That is the young
Republican view of the Republican position on climate change.
On September 21 thousands of concerned Americans will converge on New
York City for what will be known as the People's Climate March.
Organizers expect that as many as half a million people will take part
in this historic citizen action to call attention to the global crisis
of climate change.
However you look at it, the American people are sending a message
loud and clear: They want responsible leadership on carbon pollution.
What is the Republican answer? Well, look at the House. Given control
of the House, Republicans have already forced over 100 votes to
undermine the EPA. That is even more times than they have voted to
repeal ObamaCare.
Paul Ryan, the Republican chairman of the House Budget Committee,
said last week that the Republican strategy next year will be to send
the President bills they know he will veto, including approval of the
Keystone XL tar sands crude pipeline, and thereby create ``shutdown by
veto.''
Over here in the Senate, our Republican leader already threatens--if
the Republicans win the Senate--to force onto key legislation what he
called ``a lot of restrictions on the activities of the bureaucracy.''
Gee, what agency could he possibly mean? The threat is plain: Give the
Republicans polluter-backed, anti-environment legislation or they will
shut down the government. Again. This is the Republican version of
leadership.
What about out on the campaign trail? Republicans in Congress ignore
the public's call for climate action, but
[[Page S5423]]
are Republican candidates out there listening to the people or are they
listening to the polluters led by the infamous Koch brothers? Look at
how much money the polluters are spending on Republicans and take a
wild guess. News flash: They are not listening to the people.
The Republican nominee for Senate in Iowa has said of climate change:
``I'm skeptical. It's been changing since the dawn of time. I'm not
going to blame it . . . on the human race.''
In New Hampshire the leading Republican Senate candidate recently
said that he does not believe manmade climate change has been
scientifically proven. Never mind that the underlying science was first
measured back when Abraham Lincoln was President.
In North Carolina the Republican nominee has referred to climate
change as ``false science.''
Well, in the last year I visited Iowa and New Hampshire and North
Carolina, and I saw firsthand how climate change is already affecting
those States. I heard over and over deep concern about climate change.
I heard about cold-weather sports and tourism threatened by warming
temperatures in New Hampshire. I heard about crops threatened by
shifting weather patterns and about how a booming wind power industry
has emerged in Iowa. In North Carolina I heard about homes and
businesses and even air bases threatened by rising seas.
If you doubt me, go to the State universities in Iowa and New
Hampshire and North Carolina. They are not denying it. They are
actively working on and warning about climate change. Iowa State has an
entire climate science program and wants to be a ``leader in the
science of regional climate change.'' The University of New Hampshire
scientists told me about the danger to New Hampshire's iconic moose
from tick infestations because of climate change. Researchers from the
University of North Carolina, Duke University, and North Carolina State
took me out on a research vessel to see firsthand the effects of
climate change on North Carolina's shoreline. The home State
universities are clear; it is just the polluter-funded candidates who
are denying.
It is the same story across the country. Republicans running for the
Senate, from Alaska to Georgia, from Colorado to West Virginia,
question or outright deny the established climate science. Figure it
out. Do the math. There is overwhelming consensus among knowledgeable
scientists that climate change is real and being caused by humans.
Denying that fact serves the economic interest of a narrow group of
big-spending polluters, and the polluters are spending vast fortunes to
support climate deniers.
Senate Republican candidates even attended a secret retreat organized
by the Koch brothers earlier this year and praised the Kochs' political
network for helping to support their campaign--the polluter political
lifeline to the Republican Party.
A lot of blame here attaches to the Republicans' confederates on the
Supreme Court--the five Republican-appointed Justices who kicked open
the floodgates of corporate special interest spending for Republicans
in the disastrous Citizens United decision in January of 2010. With
Citizens United in their pocket, the polluters went right to work.
By the 2012 election cycle, the Washington Post and the Center for
Responsive Politics determined that a donor network organized by the
Koch brothers spent $400 million to influence that election. This
graphic shows the complex apparatus the Koch brothers used to pull
those political strings.
In the 2014 election cycle, the government accountability group
Common Cause has tallied over $34 million in political donations
already from 30 of the country's largest oil, gas, coal, and utility
corporations. That does not include the dark money fossil fuel
corporations have given to political groups which do not disclose their
donors--groups such as the American Petroleum Institute, the U.S.
Chamber of Commerce, the Koch brothers own so-called Americans for
Prosperity organization, or the secretive identity-laundering machine
known as the Donors Trust. We don't know how much these groups have
actually raised or spent on election activities, but the Koch network
is expected to spend nearly $300 million on the 2014 midterm elections.
The Center for Public Integrity reported last week that the Koch
brothers are sponsoring 10 percent of all ads in competitive Senate
races. That is more than 43,900 Senate ads between January 2013 and
last month. Americans for Prosperity alone--that Koch brothers
organization--sponsored 27,000 ads. That is one in every 16 ads in all
Senate races this cycle. And, of course, those polluter-funded ads make
up way more than 10 percent of just the Republican ads. Why is that?
Because the focus of this apparatus is on Republicans, on buying and
co-opting the Republican Party as the polluters' political instrument.
The numbers are staggering. Let's be clear about one thing: Their
intention is not to add to constructive debate on carbon pollution and
climate change. The polluters are determined to silence meaningful
debate on the catastrophic effects of their carbon pollution, and it is
working. There was a lot of Republican activity on climate change until
January of 2010 when Citizens United was brought down. And after that,
we can't find carbon pollution activity on the Republican side. They
have been buried in the threats and the promises of that polluter
funding.
Well, climate denial may work for Republicans in the short run if it
keeps wide open that spigot of polluter money that is funding
Republican candidates. We will see how that works out. But no matter
how much money the polluters pour into the Republican Party, even a
Republican Senate cannot repeal the laws of science--of physics, of
chemistry, of oceanography.
If they win the Senate, it is not just going to be time for them to
wake up, it is going to be time for them to grow up. Being in the
majority means responsibility, not just obstruction and mischief. Being
in the majority means answering your country and the world, not just
your polluter funding base. Being in the majority means hearing the
vast majority of Americans who want U.S. leadership on climate change,
not telling voters the problem doesn't exist or that America should
abdicate any responsibility for forging an international solution.
Our Republican colleagues will discover, if they don't know it
already--and many do know it already--that former Senator and Secretary
of State Hillary Clinton was right when she recently called climate
change the ``most consequential, urgent, sweeping collection of
challenges we face as a nation and a world.''
Secretary Clinton went on to say:
The data is unforgiving no matter what the deniers try to
assert. . . . If we come together to make the hard choices,
the smart investment in infrastructure, technology and
environmental protection, America can be the clean energy
superpower of the 21st century. . . . This is about our
strategic position in the world, this is about our
competitiveness, our job creation, our economic growth as
well as dealing with a challenge that we ignore at our
detriment and our peril.
So the choice for Republicans stands before them: America as a clean
energy superpower, leading the world, or America bedeviled with
polluter-fueled political gridlock and climate denial. Their choice so
far is obvious.
I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. ROBERTS. Madam President, I wish to return to the discussion of
the constitutional amendment to restrict speech. I made considerable
comments yesterday, and there are some other comments I feel should be
said about this--probably a dozen or more things. However, I wish to
return to that discussion.
We have heard a lot in this debate about commercials. Everybody is
concerned about commercials--those 30-second ads that are driving
everybody crazy, that everyone wants taken off the air, and that we
want to regulate and restrict and punish. We don't like them. No one
likes them. We want to make them go away.
Well, let's forget about the commercials for just a second. Let's
talk about the show. Does anybody watch the show? It sometimes seems as
though the only thing on TV that my colleagues care about are the
commercials about themselves. But there actually are other things on
TV. There are actual programs that fill up the time between the
commercials. Let's talk about those.
[[Page S5424]]
There is, of course, all sorts of programming on television: sports,
movies, sitcoms, reality shows. Pretty much everything--and I mean
everything--is on TV now.
There are a lot of politics on TV. The politics come in a range of
formats. It comes unvarnished on C-SPAN. It is delivered through news
and commentary on cable channels. It is satirized and made fun of on
the late night shows. It appears in documentaries and feature films.
The Citizens United case itself was the result of a political film--a
film about Hillary Clinton. During the litigation there were arguments
over whether the film and its advertisements could be treated as
``electioneering communications'' and, therefore, regulated and
restricted by campaign finance laws. In rendering its decision, the
Court properly saw, in my view, the film for what it was: An
encouragement for people to vote against Hillary Clinton. This is what
the Court said in its holding: The movie, in essence, is a feature-
length negative advertisement that urges viewers to vote against then-
Senator Clinton for President. In light of this historical footage,
interviews with persons critical of her, and voiceover narration, the
film would be understood by most viewers as an extended criticism of
the Senator's character and her fitness for the Office of the
Presidency. The narrative may contain more suggestions and arguments
than facts, but there is little doubt that the thesis of the film is
that she is unfit for the Presidency.
Then the Court went on to say:
The narrator reminds viewers that Americans have never been
keen on dynasties and that a vote for Hillary is a vote to
continue 20 years of a Bush or a Clinton in the White
House.
Then the Court found this:
There is no reasonable interpretation of Hillary other than
as an appeal to vote against Senator Clinton. The film
qualifies as the functional equivalent of express advocacy.
Having made that determination, the question then becomes, Should the
government be able to prevent it from being seen? The court held the
answer to that question was no and struck down as unconstitutional the
laws that would prevent or constrain the distribution of the film.
My colleagues on the other side want those laws to be put back in
place. They believe the government should be able to control the
content, the financing, the distribution of films that reference
candidates for office, and they are pushing this constitutional
amendment to make that possible.
Now, we can expect there will be a lot more about Hillary Clinton on
TV over the next couple of years. Some of it will be favorable and some
of it will be unfavorable. Thanks to the Citizens United decision, the
government won't be able to control what is said about her or any other
potential candidate for the presidency--either party.
My colleagues do not have much to worry about when it comes to
programming about Hillary Clinton. I don't think they need to worry
about the show. They know there are a small number of conservative film
makers who will attack her and whatever they produce is unlikely to
reach a wide audience.
On the other hand, there is a huge multitude of liberal film
producers, directors, and writers who like--if not love--Hillary
Clinton and want to see her get elected to the Presidency, and they
will do whatever they can to help her achieve that goal.
Secretary Clinton's recent book tour provided a good preview of the
kind of programming we can expect to see more of should she decide to
run for President. And luckily for her, there are plenty of television
personalities who will help her sell herself to Americans, not just her
book.
For example, one recent appearance on the Stephen Colbert show was
clearly designed to soften her image. In an extended segment that could
be seen as either amusing or nauseating, depending on your perspective,
Colbert conducted a phony interview designed to show his viewers how
smart and funny Hillary Clinton is.
Of course, Colbert can do whatever he wants with his show. No one
questions that. But it should be obvious that the show amounts to a
corporate-financed and political expenditure. Everything on the show--
the studio, the host, the equipment, the writers, the director, the
cameraman--everything is paid for by a corporation. Is there anyone in
the Chamber who thinks that a corporation doesn't have the right to do
that? Of course not. They like the show. And those on the other side
know they can expect all sorts of similar programming in the months and
years ahead. That doesn't bother them.
But the commercials are a different story. What if someone wanted to
buy a 30-second ad during the show to present an alternative
perspective. Well, we can't have that, can we? That would be
intolerable. It would present a threat to our democracy. We have to
amend the Constitution to prevent that. The absurdity is evident.
My colleagues on the other side of the aisle think our First
Amendment allows one sort of programming to have unrestricted and
unhindered access to the media, while other sorts must be limited and
constrained. I submit that is preposterous.
In our system of government, all voices have the right to be heard.
The First Amendment gives them that right. There is so much nonsense in
this debate about buying elections and drowning out voices. We have a
system that allows all voices to be heard, even those that oppose the
majority. That is not the antithetical to democracy; it is the essence
of democracy.
So it is time, it seems to me, to stop pretending that allowing more
voices to be heard somehow poses a danger just because we don't like
what they are saying.
Elections can't be bought. Voters will decide who wins them. They
will make that decision based on what they think of the candidates, and
what they think will be based on what they see and hear of the
candidates. Then they will vote. When they do so, their vote will be
equal to that of every other citizen. It doesn't matter how rich they
are or what they do for a living or whether they even have their own TV
show or never even watch TV. Every citizen gets one vote.
As they make their decision about how we are going to cast it, we
need to make sure they are able to hear all voices. That is what the
First Amendment does. It ensures that all voices have the right to be
heard, and we don't need to change it to make that happen.
Those who are pushing this constitutional amendment don't want more
voices to be heard, they want less.
There should never be any confusion about the intent of this
constitutional amendment. It is to allow this majority to pass laws
that will silence their opponents and ignores all the pious claims
about the grand intent to recognize it for what it is--a cynical
attempt to protect themselves from criticism.
Don't be fooled.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. BROWN. Madam President, one man, one woman, one American, one
vote--that is what the writers of our Constitution put in the
Constitution--not one corporation, one vote.
What I hear on the Senate floor today and yesterday from those
candidates who seem to rely on corporate money, who are the
beneficiaries of a showering of--not thousands, not tens of thousands,
not hundreds of thousands, not millions--tens of millions of dollars,
candidates who benefit from the showering of tens of millions of
dollars for their campaigns, what they are saying on this Senate floor
is almost laughable.
It would be laughable if it weren't so serious. It would be laughable
if it didn't contribute to the corruption of this institution, of this
government of which we are so proud--``of the people, by the people,
for the people''--one man, one American, one vote.
With Citizens United, with McCutcheon the Supreme Court has
effectively ruled the more money you have, the more influence you have
over our democracy.
When what I hear from the other side--again, those who are the
beneficiaries of the millions, of the tens of millions of corporate
dollars, often Wall Street, often oil companies, often big drug
companies, often big tobacco companies--when they come to the floor and
plead, they are pleading in many ways that the supporters of this
constitutional amendment are restricting the right to free speech. I
agree.
[[Page S5425]]
Whether it is the Koch brothers, whether it is the Big Tobacco
executives, they should get one vote.
But when they can spend millions and millions of dollars and shower
some of my colleagues with this kind of corporate money to get their
way, we know what is happening in this country. We know for the richest
1 percent of this country incomes have grown and grown, gone up and up.
We know for the broad middle, for the bottom 90 percent, for the
middle, for the great majority of people in this country, their wages
have been flat. No, they have actually been worse than flat over the
past 20 years.
The wealthy are getting extraordinarily wealthy, extraordinarily
wealthier. The middle class, even sort of the upper middle class--let
alone those who are making minimum wage or making $15 an hour, their
wages have been stagnant or worse.
One reason for that is--the Presiding Officer from Massachusetts has
spoken out about this nationally over and over again--one of the
reasons wages have been flat in this country--and the rich are getting
richer and richer--is the corruption of Big Money in our political
system.
I know how it works. In my race for reelection in 2012--and I am not
complaining about this. As my wife's book publisher said: No whining on
the yacht. If you get to be in the Senate, don't complain. But I also
understand when they spent $42 million against me in my campaign--I am
a big boy, I can take it--it was oil money, it was tobacco money, it
was mostly out-of-State money. It was money from some of the richest
people in the United States of America.
What did they want? They didn't dislike me personally, I assume.
Maybe they did. I don't really care. But what it was really about is
they wanted--whether the person came from Troy, OH, or Troy, MI, or
Troy, NY--a politician in office from Ohio, as they wanted in
Massachusetts, as they want this year in New Hampshire, as they want
this year in Arkansas, as they want this year in Kansas, as they want
this year in North Carolina, in Louisiana, Alaska, and Colorado--they
want a lap dog. They want somebody who will go to the well and vote
with Big Tobacco, go to the well and vote for Wall Street, and go to
the well and vote for oil companies.
That is what they will get if we continue this corrupt way of
campaign financing.
The Presiding Officer remembers--after we passed the Dodd-Frank
legislation in this Congress 4 years ago and when she was working to
establish a consumer protection agency--after the vote on Dodd-Frank,
do we remember what the leading financial services lobbyist in this
town said? The President signed the bill--within an hour or two, or at
least the same day--and the lobbyist said: Well, folks, it is half-
time.
What did that mean? He wasn't talking about the NFL. He was talking
about: Well, we lost in Congress. They actually passed a bill that Wall
Street wasn't wild about. They actually passed a bill that the largest
financial institutions were not particularly happy about, but they knew
they could use their lobbying, and they have thousands of lobbyists in
this town.
They have a number of lobbyists for every Member of Congress. They
knew they could use their lobbying force.
They knew they could use the politicians they had--I won't say people
here were bought, but you might suggest they are on a long-term lease
in some cases. They were suggesting just the threat of spending money.
So if you cast a vote in this institution next week, let's say, on a
controversial issue, we know a couple of things. You know you should do
the right thing. You know what your constituents back in Florida,
Massachusetts or Ohio are saying, but you also know one other thing.
You know if you cast a vote that Wall Street might not like, if you
cast a vote that Big Tobacco might not like, if you cast a vote that
oil companies may not like, do you know what is going to happen? What
is in your mind if they come to your State in the next election and
spend $10 million or $20 million or $30 million or $40 million.
I had $40 million spent against me because I don't do what Wall
Street wants. I don't do what tobacco wants. I don't do what the oil
industry wants. Of course, they are going to come after me.
They fell short in 2012--not by much but they fell short. But we know
they will do it again. We know every time we cast a vote they are
keeping a scorecard and saying: Well, we like what that Senator did, we
will help him or her--usually him in that case. We don't like what she
did, we don't like what he did, so we may be looking out to spend that
kind of money. One man, one woman, one American, one vote--not one
corporation, one vote.
Fortune 500 companies straddle the globe. They reap millions of
dollars of profits. American corporations are at their most profitable
time perhaps in their history sitting on tens, hundreds of millions of
dollars in profit.
It doesn't take a Ph.D. in math to understand they spent a small,
small, microfraction of the money they are making to protect those
profits.
How do they do it? They come to Ohio, they come to Massachusetts,
they come to Florida, they come anywhere in the country and they spend
millions. They spend tens of millions to protect themselves on behalf
of Wall Street, on behalf of Big Oil, on behalf of these big tobacco
companies. It is all pretty simple: one man, one woman, one American,
one vote.
Citizens United and McCutcheon make clear there is now an entry fee
for participating in our democracy. That is why I support the
constitutional amendment proposed by Senator Udall that curbs unlimited
campaign spending: one man, one woman, one American.
This amendment grants Congress the authority to regulate and limit
the raising and spending of money. We are not shutting anybody off.
Anybody can still give fairly significant amounts of money. But we do
know--do the math. After the McCutcheon decision, donors can now
contribute up to $3.6 million an election cycle.
I don't know for sure, because I have not met most of the 300 million
people in our country, but I don't think there are all that many that
have the wherewithal financially to contribute $3.6 million. But I also
know--because my staff did the math on this one, I acknowledge--the
average person making minimum wage at $7.25 an hour--and,
parenthetically, the same people who love McCutcheon love the millions
of dollars spent, showered on us from Wall Street or against us from
Wall Street, from Big Tobacco or from Big Oil. Those same people are
stopping the minimum wage from being increased.
The minimum wage is at its lowest level in buying power since 1968.
It has been stuck at $7.25 an hour.
Back in the era of bipartisanship on minimum wage--we actually passed
one in 2007, my first year in the Senate, signed by Republican
President Bush. Those days seem to be past.
Think about the math. At $7.25 an hour, people are allowed to give
$3.6 million under the McCutcheon decision--pushed by corporations and
handed down by the Supreme Court--that says corporations are people
too, more or less.
For a minimum wage worker, it would take 239 years, working full
time, making $7.25 an hour, to make $3.6 million. And then they would
have to give it all away in that election cycle to be able to compete
with the oil companies, the drug companies, and Big Tobacco and Wall
Street.
This is very clear. We can change it.
Again, back to the arguments on the other side. They are laughable at
home. I don't think I know anybody who thinks it is OK that we are
allowing somebody to come in and spend--except for colleagues whom I
like. Most of the people on the other side of this issue, I like them
personally, but I don't know very many people, unless they are in
Washington, unless they have a stake in this system--I don't know
people who think it is a great idea to let people spend $3.6 million.
They are not spending it out of their charitable whims. They are
spending it because they want their people, their water boys, their
water girls for the drug companies, the water boys and the water girls
for Wall Street, the water boys and the water girls for Big Tobacco,
they want those people elected, not people who will stand up to those
interest groups and do the right thing.
To restore voters' faith in the political system, to ensure voters
that their voices are being heard, one man, one
[[Page S5426]]
woman, one American, one vote, that is what we stand for. Those are our
values. That is why this is an important issue.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. BROWN. Madam President, I thank the Senator from Florida for
allowing me to do this before his final remarks of the evening.
____________________