[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.

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