[Congressional Record Volume 167, Number 99 (Tuesday, June 8, 2021)]
[Senate]
[Pages S3995-S3996]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. SUPREME COURT
Mr. WHITEHOUSE. Madam President, in my opening speech about the
rightwing scheme to capture the Court, the Supreme Court, I described
the secret strategy memo that Lewis Powell wrote on the eve of his
appointment to the Court about how to deploy corporate political power.
As a Justice of the Supreme Court, Powell had the chance to prove to
the corporate world his secret memo's theory of what could be achieved
by ``exploiting judicial action''--his phrase--particularly with, as he
called it, ``an activist-minded Supreme Court.''
Second, Powell had the chance on the Court to start laying the legal
groundwork for precisely the sort of corporate political activity that
his secret memo had recommended to the U.S. Chamber of Commerce, and
Powell did both.
The first case that allowed Powell to implement recommendations from
his secret report came in 1976, in a case about the Federal Election
Campaign Act. The case was Buckley v. Valeo, and the decision was a
beast--138 pages, with another 83 pages of dissent and concurrence
cobbled together by the Court with what one observer called
``extraordinary speed.'' Five Justices in that case, including Powell,
were described as First Amendment hawks who were wary of any portion of
the Federal Election Campaign Act that could inhibit free speech and
association.
Now, you have to understand that free speech and association were
buzz words for corporate political activity precisely of the sort
championed in Powell's secret chamber memo. Free speech meant corporate
America having the right to be heard, even to, as the secret report
said, ``equal time.'' Freedom of association provided corporations the
``organization,'' ``careful long-range planning and implementation,''
and well-financed ``joint effort''--all those quotes--that Powell had
recommended be done in his report ``through united action and national
organizations.''
The Court's decision in Valeo did two noncontroversial things. It
accepted that campaign contributions could be limited because unlimited
campaign contributions could give rise to corruption or at least the
appearance of corruption. Unlimited donations to candidates would even
``undermine representative democracy,'' the Court said. No big deal.
The Court also decided that candidates may spend as much of their own
money as they want on their own campaigns. It considered unlimited
spending on one's own campaign protected by the First Amendment, as
there was little danger of corruption from spending one's own campaign
money on oneself.
So both of those holdings are unremarkable. What was remarkable was
where Powell and his hawks took the Court when other interests, like
corporate interests, wanted to spend money on a candidate. Corporate
political spending per se was not at issue in the case, but spending by
special interests is precisely the kind of political influence which
Powell had recommended in his secret report to the chamber.
Powell and his hawks said special interest political spending, so
long as it was not in the form of a campaign contribution, was
protected by the same principle that protected a candidate spending his
own money on his own campaign.
Powell asserted that limiting these supposedly ``independent''
special interest expenditures ```perpetrates (the) grossest
infringement' on First Amendment rights.'' He did acknowledge the
interest in ```purity' of elections,'' but he used skeptical quotation
marks around the word ``purity,'' just like he had used skeptical
quotation marks in his report around the word ``environment.'' But
Powell dismissed those purity concerns as likely ``illusory,'' to use
his word.
Powell's Bench memo for the case critiqued the election law's
``attempt to lower barriers to political competition to increase the
range of voter choice.'' It read: ``[T]he attempt to open access for
the many necessarily involves limiting the power of the few to exercise
rights of speech and association protected by the Constitution.''
This interest in protecting the ``power of the few'' aligns exactly
with Powell's secret chamber memo about corporate power and aligns with
Powell's own notes, which have more of his disparaging quotation marks
questioning some of the briefs filed in the Valeo case that ``identify
one of the `evils' as the power of `the wealthy few' (undefined but
obviously unworthy people) to influence elections unduly.'' In tone and
import, that comes right out of Powell's secret chamber report, which
counted on the power of the corporate few.
Powell's Richmond history, his corporate law practice, his social
position, his boardroom experience, and his anxiety about upheaval all
align with a corporate worldview that society's decisions should be
made by the sort of people in corporate boardrooms, so the power of
those ``few'' had to be protected, to battle against what his report
called the ``broad attack'' both on the ``American free enterprise
system'' and the ``American political system of democracy under the
rule of law.'' Particularly important it was to protect that power
when, as he had written to the chamber, the trouble is ``deep'' and the
``hour is late.''
To accommodate that corporate perspective, the Court had to reach
judgments about politics. It showed itself helpless. The amateurish
political outlook of the Court in Valeo stood out in the late-added
footnote 52, which, in the interest of drawing clear lines--
``vagueness'' being a stated concern of the Justices--exempted from
disclosure political advertisements that did not expressly advocate for
the election or defeat of a candidate using magic words like ``vote
for,'' ``vote against,'' ``elect,'' or ``defeat.''
In the Court's amateur opinion, a hostile bombardment of TV
advertising challenging a candidate's morals, decency, or integrity, or
attacking the candidate's alignment with the community's values, and
dropped on the candidate in the heat of election season with the
intention of defeating the candidate, was not deemed advocacy in the
election--unless it used those magic words. The idiocy of that premise
is obvious to anyone in politics.
The Court's amateurish folly about political spending extended to
presuming that spending by a powerful interest for a candidate would
create no risk of corruption; that the spending and the resulting
influence could be kept separate and independent. That is idiotic in
real life.
When a powerful political interest starts signaling that it will
spend enormous sums to support candidates, guess what--candidates will
find a way to take advantage, perhaps by attracting the spending to
their own side by the positions they take or perhaps by avoiding taking
positions that would send the spending to their opponent's side. The
Court presumed that some etiquette would separate interest from
candidate, but that was folly. It is blindingly naive to think that
politics would produce no workarounds, that no coordination or
signaling or intermediaries would violate whatever etiquette of
independence the Court had in mind.
As we know, information travels fast in politics, never mind the
etiquette. Drop a rock in a stream, and the stream flows around it. Put
eager candidates and enormous interested spenders together, and trouble
will follow, as it has. Look no further than the corruption of American
politics on climate change by the fossil fuel industry. Again, this was
idiocy from amateurs.
But the Valeo folly accomplished one thing: It opened the lane for
unlimited special interest spending to come into elections to support
or oppose candidates, just as Powell's secret memo had recommended.
The next opportunity for Powell came 2 years later, and this, time it
involved not just the type of political activity corporations would
likely undertake but corporations directly.
Massachusetts had banned corporate campaign contributions from
statewide political referenda. A Massachusetts bank, the First National
Bank of Boston, objected and sued. Frank Bellotti was then the
Commonwealth's attorney general and defendant.
First National Bank of Boston v. Bellotti wound its way up to the
Supreme Court. Here, the question was the very right of corporations to
influence popular elections--in this case, a
[[Page S3996]]
referendum election. In a 5-to-4 decision, Powell wrote for the
Republican-appointed majority that corporations had a constitutional
right to engage in that political activity.
This outcome can't be found in the Constitution, which provides no
political role whatsoever to corporations, but this outcome aligned
precisely with the recommendations of Powell's secret report to the
chamber. Indeed, it was the heart of his pitch to the chamber. His
entire secret plan for corporate political power would fall apart if
States could bar corporate influence from elections, even referendum
elections. Powell had urged in his secret report that corporate
interests not have ``the slightest hesitation to press vigorously in
all political arenas'' and that corporations should show no
``reluctance to penalize politically those who oppose [them].''
Corporations could never ``press vigorously'' or ``penalize
politically'' if they could be kept out of elections, and so Bellotti
was decided.
Paired with Valeo, the Bellotti case established that corporations
had a constitutional right to engage in elections--at least referendum
elections--with as much money as they wanted, or at least as much money
as they could raise, so long as the election spending was not in the
form of campaign contributions.
Ultimately, this laid the framework for the infamous Citizens United
decision, another bare, 5-to-4 Republican majority that gave in this
case corporate interests a full constitutional right to unlimited
political spending and, as a practical matter, to unlimited anonymous
political spending.
How, in Bellotti, did they get around a Constitution that provides
corporations no political rights? The trick used was to focus on the
message, not the messenger--completely overlook that it was a
corporation, not a person. The Court said that corporate political
spending was actually speech, that influencing a popular referendum was
the ``type of speech'' at the heart of representative democracy, and
that the public had a right to hear it. The fact that corporations are
not people and, indeed, that they have advantages over real people in
electioneering and, indeed, that they might even come to dominate
popular democracy because of those advantages was overlooked by
directing attention to the speech, not the speaker.
If the type of speech was relevant to the public debate, Powell said,
it doesn't matter whether a corporation or a person says it--except
every piece of this is wrong. Money is not speech. Corporations are not
people. And looking at the message, not the messenger, would allow any
entity's message into our politics, even foreign ones. Then add in
anonymity, and the problem goes toxic, as we now see in our country
today. ``We the People'' becomes ``We the Hidden Anything With Money.''
The last case for Powell was Federal Election Commission v.
Massachusetts Citizens for Life in 1986. Here, the question was whether
an advocacy group of precisely the kind Powell had in mind in the
chamber memo was forbidden to spend its corporate treasury funds in a
Federal election.
Now, the situation was that Congress had blocked corporations from
using their treasury funds in Federal elections. They had to raise
money from voluntary donations; hence the corporate PACs that we have
seen that had to raise and spend their own money. The Court accepted
that corporate treasuries might give corporate voices ``an unfair
advantage in the political marketplace'' given their vast corporate
wealth and resources. But in the case before it, the Court decided that
nonprofits were different. They were designed for advocacy, and they
didn't have the same sort of treasury funds as business corporations.
Again, remember the Powell memo. Powell didn't recommend that
corporations undertake their political work directly. He had pressed
for ``organization,'' for ``joint effort.'' He had urged corporate
America to pursue ``the political power available only through united
action and national organizations.'' And guess what. The U.S. Chamber
of Commerce, the national organization to which Powell had delivered
his secret recommendations, was a nonprofit corporation.
In his years on the Court, Lewis Powell made good on the secret
recommendations that he had made to the U.S. Chamber of Commerce 5
months before joining the Court. He showed that ``an activist-minded
Supreme Court''--his words--could be that ``important instrument for
social, economic and political change''--his words--that he had
proposed. He opened a lane for unlimited money into politics, enabling
what his secret report had called ``the scale of financing available
only through joint effort.'' He bulldozed aside bars on corporate
spending and politics so corporations could deploy, just as his report
had urged, ``whatever degree of pressure--publicly and privately--may
be necessary.'' And he allowed advocacy organizations to spend their
treasuries in politics, opening the way for the ``organization,''
``joint effort,'' and ``united action'' he had called for in his report
through ``national organizations.''
All the key pieces were in place to unleash the corporate influence
machine that he had recommended to the chamber, influence that
dominates much of American politics today, influence that controls much
of what we do in the Senate Chamber today, and in which, of all things,
the chamber, which was his client for the secret report, is today the
apex predator of corporate influence, red in tooth and claw.
Everything was aligned for what Powell had recommended: corporate
``political power,'' ``assiduously cultivated,'' ``used aggressively
and with determination,'' with ``no hesitation to attack,'' ``not the
slightest hesitation to press vigorously in all political arenas,'' and
no ``reluctance to penalize politically those who oppose.''
It is a dark achievement, but it is quite an achievement. And,
interestingly, Powell's official biography frames out his judicial
career without mentioning his role as the early orchestrator of
corporate political influence in American politics. It is actually
likely his most significant and lasting legacy.
To be continued.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
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