[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[Senate]
[Pages 16116-16119]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            THE DISCLOSE ACT

  Mr. MERKLEY. Mr. President, I rise to speak about an issue of 
critical importance to the future of our democracy. I have in my hand 
the majority opinion titled ``Citizens United.''
  This Supreme Court decision, decided on the narrowest of grounds, is 
of profound importance to our Nation and how the voices of citizens get 
heard or get drowned out. This decision, Citizens United, is a dagger 
poised at the heart of American democracy.
  Our Nation is unique in world history in that it was founded not on 
nationality of royal bloodlines but on a simple idea, a simple yet 
revolutionary idea that the country's people are in charge.
  As was so often the case, Abraham Lincoln said it better than most. 
He said, the United States is a ``government of the people, by the 
people, for the people.'' What that means is that we elected officials 
work for the people. They elect us. They are in charge.
  But this formula, government by and for the people, cannot survive if 
our elections are not open, free, and fair, and Citizens United ends 
open, free, and fair elections in America. This decision says that 
unlimited secret and foreign funds can be spent on elections in the 
United States of America. Let me restate that. This decision, Citizens 
United, says unlimited secret funds can be spent on elections in the 
United States of America.
  This is not just some hypothetical. Reports estimate that over the 
last few weeks, $24 million has been spent in secret spending, with no 
ability to trace who put it into campaigns. The results are negative 
attack ads barraging candidates in State after State after State, 
under, I am sure, pleasant-sounding names such as Citizens for a Strong 
America or Citizens for Blue Skies or Citizens for a Better Nation, 
front groups that are using this secret money, allowed by this 
decision, to drown out the voice of the American citizen in elections 
across this land.
  Government is not by and for the people if corporations and even 
foreign corporations and giant government contractors are able to 
hijack our electoral process to run millions of dollars of attack ads 
against any candidate or legislator who dares put the public interest 
ahead of the company's bottom line.
  Our Constitution, through the first amendment, puts the highest 
protection on political speech, recognizing how important it is that 
citizens be able to debate the merits of candidates and ideas. But the 
essence of the first amendment is that competing voices should be heard 
in the marketplace of ideas. The Citizens United decision gave the 
largest corporations a stadium sound system to drown out the voices of 
our citizens.
  Let me give you some sense of this. Take a single corporation in 
2008, Exxon Corporation. Exxon Corporation made a lot of money in 2008. 
If it had spent just 3 percent of the total net revenue it had that 
year, that would exceed all the spending by Presidential candidates for 
the 2008 election. Three percent of a single corporation's net revenues 
would drown out all the dollars spent by citizens in the Presidential 
race in the 2008 election. That is the stadium sound system I am 
talking about.
  Think about the scale. My Senate race was far and away the most 
expensive election in Oregon history. Two candidates together spent 
about $20 million. To translate that back to a single corporation, 
Exxon, that would be the amount of money in net profits they made every 
10 hours. You get some sense, then, of the challenge.
  If you like negative ads, you will love the impact of Citizens 
United. Imagine what corporations will do to put favored candidates in 
office. The sheer volume of money could allow corporations to handpick 
their candidates, providing unlimited support to their campaigns, and 
take out anyone who dares to stand for the public interest.
  The DISCLOSE Act we are debating is not a perfect solution to this 
attack on American democracy. But it does change one critical feature; 
that is, secret spending becomes publicly disclosed spending.
  My colleagues on both sides of the aisle have spoken time and time 
again about the importance of public disclosure and democracy. One of 
my colleagues from Texas said:

       I think the system needs more transparency so people can 
     reach their own conclusions. In other words, people should 
     know who is funding that campaign ad.

  One of my colleagues from Tennessee:

       To me, campaign finance reform means individual 
     contributions, free speech, and full disclosure. In other 
     words, any individual can give whatever they want as long as 
     it is disclosed every day on the Internet. Otherwise you 
     restrict free speech and favor super rich candidates, 
     candidates with famous names, the media and special interest 
     groups, all of whom can spend unlimited money.

  That is a strong statement by my friend and colleague from Tennessee 
in support of disclosure. The Republican floor leader, speaking in 
1997:

       Public dealerships of campaign contributions and spending 
     and spending should be expedited so voters can judge for 
     themselves what is inappropriate.

  How can a voter judge the content of the ad if they do not know what 
money is behind it? So disclosure is something that has been a 
bipartisan concept. Folks have referred to it as sunshine is the best 
disinfectant. So this bill brings transparency. The DISCLOSE Act makes 
the CEO of a company stand by its words. The CEO would have to say, at 
the end of the ad, that they approved this message, just like political 
candidates have to do right now.
  It is common sense. If a company is willing to spend millions working 
against a candidate, voters, our citizens, have a right to know who is 
involved instead of allowing them to hide behind shadowy front groups. 
Similarly, this bill would require 527 groups, which exist solely to 
influence elections, to be transparent about who is funding them. 
Voters have a right to know where ads and campaign dollars come from.
  A second issue this act takes on is the pay-to-play issue; that is, 
the concept that groups that are competing for government contracts and 
winning those contracts have a particular conflict of interest when it 
comes to spending large volumes on campaigns. So this gets rid of that 
conflict of interest. It says it bars government contractors from 
running campaign ads or paying for other campaign activities on behalf 
of a Federal candidate.
  We understand this conflict of interest. We have the Hatch Act. We 
understand Federal employees have a conflict of interest. We also 
understand government contractors have a conflict of interest. This 
bill also takes on the issue of foreign-owned corporations. It says 
that if a company is 20 percent foreign owned, it is not eligible to 
allow these massive expenditures on behalf of particular political 
candidates or causes.
  Do we want to leave the door open to foreign corporations spending 
unlimited sums here in America to change the course of our Nation? I do 
not think so. I do not think any red-blooded American wants foreign 
corporations dictating the future of the United

[[Page 16117]]

States of America. That is what this act is about.
  Essentially, what the Citizens United decision did, it created a 
``supercitizen'' who can operate in secret with unlimited funds to 
influence American elections. A few years ago, I was with my son on the 
first floor of the Lincoln Memorial, down under the stairs. I saw a 
quote that had been posted on the wall. It said something to the effect 
of: The greatest threat to the success of our Republic is that the 
citizens have an equal voice.
  I said that is an interesting quote coming from a President in 
wartime, in a civil war, dealing with slavery. So I asked the ranger: 
Say, do you know the background of that quote? Because I was surprised 
President Lincoln did not say the biggest threat was the war or slavery 
or reuniting the sides or preserving the Constitution. But he said: the 
citizens' voice, preserving the citizens' voice.
  The ranger lit up and said: Yes, actually, I do know the background 
to that. He said: During the civil war, President Lincoln was very 
concerned that the military contracts that were being let by the 
government were resulting in numerous representatives of companies 
coming to DC and lobbying intensely to get those contracts. He was 
concerned that voice would drown out the voice of the people.
  It is no wonder. It fits right with a President who understood the 
heart of the genius of American democracy, that we are talking about 
government by and for the people.
  Well, Lincoln's concern about that conflict of interest is one that 
should be magnified many times today in the context of Citizens United. 
Citizens United, that allows unlimited secret donations and foreign 
donations to influence the course of American elections.
  President Lincoln reminds us the essence of our Nation, the cause 
that brought a generation of patriots to challenge the greatest 
military power of the 18th century, the idea that has inspired people 
to leave everything to come to our shores is a government of people, by 
the people, for the people.
  So let's say no to secret spending. Let's say no to foreign 
corporations. Let's say no to the conflict of interest of government 
contractors using their profits from their contracts to weigh in and 
try to influence and getting favoritism with candidates. Let's say yes 
to government by and for the people.
  We need some profiles in courage today to preserve the heart of our 
democracy, government by and for the people.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Pryor.) The Senator from New Jersey.
  Mr. MENENDEZ. Mr. President, I come to the floor in an effort to try 
to get my colleagues on the other side of the aisle to join us in 
preserving our democracy. I heard the Republican leader's remarks that 
we should be focused on jobs, and we have been, notwithstanding the 
constant obstruction of our colleagues on the other side of the aisle 
by using the filibuster countless times in terms of us being able to 
move forward on jobs.
  But this legislation is about jobs. Some people might ask: Well, what 
does the disclosure of campaign finance have to do with jobs? It has 
everything to do with it because the murky special interests that are 
out there spending unlimited amounts of corporate money are not 
spending it because they just want to participate in our electoral 
process without a purpose. They are participating because they have a 
purpose.
  The purpose is to elect those individuals who ultimately will respond 
to their agenda, which is an agenda that, in many cases, works against 
the interests of working men and women in this country; works against 
some of the very essence of legislation we have passed and signed into 
law such as equal pay for equal work; works against the very interests 
of what we are trying to accomplish on food safety so none of our 
families will ever get ill because of a product that should have never 
made it to their table in the first place; works against the interests 
of those in this country who want to work and give a hard day's work 
for a fair day's wage and at the same time work in conditions that 
ensure their safety is preserved and they can go home at the end of a 
long day to their loved ones and come home safe and secure--those and 
so many other interests. So when we talk about jobs, knowing who is out 
there spending money for what purpose, particularly for what corporate 
purpose, is incredibly important to how we create jobs, what do we do 
in terms of working conditions, what do we do in terms of wages, what 
do we do in terms of equity. This is about jobs. It is also about our 
democracy.
  Since the Supreme Court made its decision allowing corporate 
interests and labor interests to spend money unlimitedly--and, by the 
way, in doing so also allow the possibility of foreign corporations, 
many of which are not just private foreign entities, they are foreign 
entities controlled by a government--the money is flowing. Don't 
believe me, even though we have seen since August 15 to last night $21 
million already spent on the Republican side of the aisle in 
independent expenditures, unknown money, no person, no face, no name. 
That is why I guess we can't seem to get a vote. But don't listen to 
me. Listen to Michael Toner, former Republican Federal Election 
Commission Commissioner. He said:

       I can tell you from personal experience, the money's 
     flowing.

  For what purpose? Corporations just spending their money for 
something other than the pursuit of the bottom line? When have we known 
a corporation to spend its money recklessly without pursuing an 
interest in the bottom line? I haven't seen too many of those. They may 
have made bad mistakes, but they have never purposely spent money for 
the purposes of anything other than to improve their bottom line. So if 
they are spending money in elections, they are spending to make sure 
they can improve their bottom line. This undermines the very essence of 
our democracy where we want individual citizens and voters to determine 
the outcome of the elections, not the monied interests.
  In this process, this was a bipartisan effort originally when 
Congress said: We don't want corporate or labor money to be spent 
unlimitedly in Federal elections. We have had continuous comments since 
then. Here is the Republican leader, Senator McConnell:

       Public disclosure of campaign contributions and spending 
     should be expedited so voters can judge for themselves what 
     is appropriate.

  We have changed that view because all we are trying to do is say: OK, 
Supreme Court, you are going to allow the money to flow from the 
corporations. Let us know who is spending it and on whom they are 
spending it and for what purpose. Then the voters can judge for 
themselves what is appropriate.
  We have had others as well who are in the midst of this election 
process, such as my counterpart Senator Cornyn, saying:

       I think the system needs more transparency, so people can 
     more easily reach their own conclusions.

  What do we have? Less transparency. So an individual who gives their 
money to a candidate, they get fully disclosed. A corporation or a 
special interest or a foreign interest gives money, they can hide 
behind these shadowy groups. They have great names--Americans for this, 
Americans for that. The problem is, we don't even know if one of those 
groups that call themselves Americans for X, Y, or Z is actually an 
American corporation. With the loophole created by virtue of allowing 
foreign corporations to now spend in our elections, it is the ultimate 
erosion of our democracy.
  If Members don't think they will, let me cite a few examples of why 
they might. Imagine if BP could go ahead and influence the elections of 
a whole host of Senators because they want to determine what our energy 
and drilling policy is by electing those who ultimately share their 
views. After what they have done in the Gulf of Mexico, after what they 
refused to do in testifying before a hearing that I will hold next week 
about the release of the Pan Am 103 bomber and what role they played in 
lobbying for the release of that terrorist that killed Americans

[[Page 16118]]

they can't even send a witness to our hearing, do my colleagues think 
they would not be interested in spending millions to determine who can 
be supportive of what they want?
  Do Members believe the Chinese wouldn't ultimately make investments 
in candidates who continue to espouse a philosophy that allows jobs to 
be offshored? Talk about jobs to be offshored to countries such as 
China where manufacturing is dirt cheap and rights are nonexistent and 
working conditions virtually don't exist and the environment is not a 
question. Do Members think it is impossible for that to happen?
  Do Members think it is impossible for Hugo Chavez not to be spending 
money here through Citgo and saying: Let me support those who support 
the type of views I hold and who will engage in an energy policy that 
is much different than I can influence with Venezuelan oil?
  Do my colleagues think there are those in the corporate sector who 
have been fighting food safety--not all but some--who wouldn't elect 
those individuals who will ensure that we can't have the food safety 
procedures to come into the 21st century so that we can ultimately 
ensure that our food is safe? No, they would rather have the ability to 
do what they do and not have to worry about the consequences of safety 
to improve the bottom line.
  I could go on and on with examples of why foreign interests spend 
well in our elections to dictate policies that ultimately would inure 
to the detriment of the American people and to the benefit of their 
interests. That is what we are fighting against. That is what we are 
trying to undo in terms of the legislation we are considering, to 
disclose. What a terrible thing, to disclose. We are not even stopping 
the contributions because the Supreme Court said the contributions can 
be made by corporations, but at least let's know who is giving them and 
who they are giving it to and for what ostensible purpose.
  I see a continuing erosion of our democracy through the present 
circumstances. I see why we can't get a vote on the other side of the 
aisle because, overwhelmingly, they are receiving the benefits of this 
undisclosed, shadowy money that no one knows where it comes from, no 
one knows who is giving, for what purposes. Is that really the American 
way? Is that what the average voter wants to see in terms of their 
democracy? I don't think so.
  I urge my colleagues to follow the essence of McCain-Feingold. 
Senator McCain and Senator Feingold authored legislation. All of those 
who made comments about disclosure, it is time to at least simply 
disclose. It is time to allow the American people to know who is 
engaged in this election, who is spending millions. They are talking 
about raising and spending nearly $300 million. There are 41 days to 
the election. We would not know where it came from, who is giving it, 
for what purpose. That is the ultimate corruption of our system.
  I hope my colleagues will vote to proceed. Let's have the debate and, 
more importantly, let's cast a final vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I believe the eloquence of Senator 
Menendez marks a high point in the debate. I don't know that anyone 
could have expressed what is at stake as well as he did. I will make a 
humble attempt to build on what he said. Before he leaves the Chamber, 
in a country of, by, and for the people--our country--the people have a 
right to know who is supporting their Senators, who is opposing their 
Senators, who is supporting their Members of Congress, who is opposing 
them. That is all we are asking. It is simple. It is the American way. 
We do things in the light. It makes us different than other countries. 
The DISCLOSE Act is essential. I thank my colleague for his leadership.
  The DISCLOSE Act is a much needed response to a Supreme Court 
decision in Citizens United which essentially allows big money to drown 
out the voices of our people. I have always thought and believed--and 
still believe--that what makes us great is that we try to have laws 
that level the playing field so people who are extremely wealthy don't 
have more to say than those of modest means. How do we do that in 
everyday life? We try to have a public school system so we ensure that 
all children get an education. I personally am a product of public 
schools, kindergarten through college. Were it not for that, my family 
couldn't afford to send me to private schools. How could I have ever 
made it to a decent job, let alone to the Senate? In all of the things 
we try to do to try to have a safety net for people who are unemployed, 
everything we do, it seems to me has been to ensure we have a thriving 
middle class, that the American dream is there for people who work hard 
for it.
  We don't want to get to a situation where simply because a 
corporation has, frankly, billions of dollars they can spend on 
campaigns, they can simply do it in secret and there is an ad run 
against a sitting Senator on either side of the aisle, and we don't 
have any clue who has put that money down. As Senator Menendez says, 
they pick great names: Americans for Justice, Americans for a Better 
Tomorrow. They name great names. But who is behind it?
  Frankly, we could have a foreign country behind that ad if they had a 
subsidiary in America they control. That foreign country could very 
well be playing in our elections as we speak with the millions of 
dollars we see coming into the Senate races.
  In the Citizens United case, the majority of the Court reversed a 
100-year-old law and overruled decades of legal precedent when they 
decided that corporations and labor unions cannot be restricted from 
spending unlimited amounts in Federal elections because they equated 
any limits with violating free speech. I ask the question in this great 
country of ours, where we all have the privilege of living and we all 
have the privilege and responsibility of voting: Why is it that a 
nameless, faceless entity has more speech than any one of our citizens? 
Why? Because these corporations are worth trillions of dollars. The 
average person obviously has nowhere near it. The average income in our 
country is about $50,000 for a family now, maybe a little less. How 
would that person compete with a $1 trillion corporation? The Court 
doesn't seem to care about that, the majority, a slim majority, when 
they equate spending limits with speech.
  What they actually said is that a corporation worth trillions gets to 
have much more speech than any one of my constituents in California or 
any one person in the whole United States of America. The decision was 
astounding.
  It defies common sense to conclude that corporations or labor unions 
are citizens in the eyes of the law.
  I said to my staff: Have you ever called a corporation and asked the 
corporation to go to lunch with you? Corporations are not people. They 
are entities. How the Court could equate corporations with people is 
amazing.
  Mr. President, I ask unanimous consent for 2 additional minutes, and 
then I will finish up. And add that--
  Mr. BOND. Mr. President, I do not object. Whatever time she needs I 
hope will be added on to the time that has previously been allotted. I 
do not want to cut short the comments of my friend from California.
  Mrs. BOXER. That is extremely kind of my colleague.
  Mr. President, I ask unanimous consent to take 5 minutes and to add 
that on to Senator Bond's time.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. BOXER. So the decision was astounding to equate people with 
corporations and unions, on its face. As Justice Stevens wrote in his 
dissent:

       Corporations have no consciences, no beliefs, no feelings, 
     no thoughts, no desires . . . they are not themselves members 
     of ``We the People'' by whom and for whom our Constitution 
     was established.

  We all know corporations are important in our lives and they make 
enormous contributions to society, but they are not people, and their 
profit motive keeps them going. That is our system, and that is fine. 
But all we are

[[Page 16119]]

saying in this debate over the DISCLOSE Act is, if a corporation or a 
union is going to take out an ad against a Senator or for a Senator, or 
against a challenger or for a challenger, that they simply stand up and 
say--that is, the CEO of the corporation: I am Mr. Smith, and I 
approved this message.
  When I make a commercial or any of my colleagues or any of our 
challengers, they need to do that. You will see that on every 
commercial: I am so and so, and I approved this message.
  So all we are saying is, level the playing field--at least that. We 
need to do a lot more to fix this Supreme Court decision, but at 
minimum let's have disclosure. The Fortune 100 companies had combined 
revenues of $13.1 trillion during the 2007-2008 election cycle. They 
had those revenues. If they devoted just 1 percent of that--1 percent 
of that--it would double the federally reported disbursements of all 
American political parties and PACs combined. I think we cannot allow 
our electoral process to be dominated by the special interests.
  So all we are saying in the DISCLOSE Act is, stand up and be counted. 
Let us know who you are. We have to know who you are. Do not hide 
behind some shadowy name of a group. Again, these names are all very 
nice: Americans for this and Americans for that. Let us know who you 
are. That is all we are saying.
  This is a government of, by, and for the people. The people have a 
right to know who is contributing to us, to our opponents, and it is 
very simple.
  There could be foreign influence here, again I would say. In our 
bill, we basically say no foreign influence. If you are a domestic 
corporation who is controlled by a foreign country or a foreign 
corporation--say if China, say in Venezuela, say anywhere; pick your 
country--you cannot take an ad. This is America. We ought to know who 
is contributing these huge, enormous sums. We ought to know who they 
are. Our voters ought to know who they are. The American people deserve 
nothing less.
  So I would hope when we take up this vote again, there will be no 
more filibusters over this issue. I have never seen so many 
filibusters. I have been here a while. Let's go to this legislation. 
Let's hear the other side defend why they think foreign countries or 
foreign corporations should be able to play in our elections. Let them 
defend it if they want to. That is fine. That is fair. I am sure they 
will come up with reasons.
  But yesterday we could not go to the military bill. It has a pay 
raise for our soldiers. That is put on hold because people did not want 
to vote on the DREAM Act. They did not want to debate don't ask, don't 
tell. I do not understand it. Now we have a situation where they are 
filibustering us being able to go to this very commonsense bill, the 
DISCLOSE Act, which many of my colleagues on the other side have 
supported in the past--simple disclosure, transparency. I could read 
you chapter and verse of my colleagues on the other side who were 
filibustering the DISCLOSE Act in the past saying: We want 
transparency.
  So I think this is a pretty open and shut case. The American people 
have a right to know who is influencing their elections. Just have 
these corporate executives, these union executives stand up and say: I 
am so and so, and I support this message, and I paid for it.
  With that, I am happy to yield the floor with great thanks to my 
colleague for allowing me the opportunity to complete my remarks.
  Thank you very much. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.

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