[Congressional Record (Bound Edition), Volume 156 (2010), Part 12]
[Senate]
[Pages 17478-17480]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            LAMEDUCK SESSION

  Mr. SPECTER. Mr. President, I have sought recognition to discuss the 
activities of the so-called lameduck session we are about to enter. I 
begin by suggesting that our session does not necessarily have to be a 
lameduck. We have the capacity to respond to the many pressing problems 
of the country as we choose. We can spread our wings and we can fly. 
One could say at many points during the course of the 111th Congress, 
the session could be called a turkey. It has not been very active in 
many respects. This body, not atypical, has been expert at avoiding 
tough votes. Well, if there is any time where it is easiest to avoid 
tough votes, it is a long distance from the next election, and we can't 
get any further from the next election than today, since the last 
election was only 13 days ago.
  It is my suggestion that this would be a good time to undertake some 
significant action. The country is in a tremendous state of turmoil 
politically, I think more so than at any time in the country's history, 
certainly more than at any time during my tenure in the Senate; I think 
beyond that, at any time in the history of the country with the 
exception of the Civil War period. We have seen candidates run on a 
platform of ``I won't compromise.''
  This is a political body. The art of politics is compromise and 
accommodation. I suggest there are some real lessons we all learned 13 
days ago from the election which we ought to put into effect now and 
take some action and some decisive action. I suggest a good place to 
start would be the enactment of the so-called DISCLOSE Act. That is the 
legislation which would, at a minimum, require the identity of 
contributors be known to the public so their motivations can be 
evaluated.
  Campaign finance reform followed the massive cash contributions going 
back to the 1972 elections, and the Congress passed reform legislation 
in 1974. Then, in a landmark decision, Buckley v. Valeo, in 1976, key 
parts of that legislation were declared unconstitutional. Freedom of 
speech under the first amendment was equated with money. I agree with 
Justice Stevens that that was a classic mistake; that the principle of 
one person one vote is vitiated by allowing the powerful, the rich to 
have such a large megaphone that it drowns out virtually everybody 
else.
  There have been a series of legislative enactments to try to overcome 
the restrictions of Buckley v. Valeo and a corresponding series of 
Supreme Court decisions broadening the field of freedom of speech, 
until we got to the case of Citizens United. Then, upsetting 100 years 
of precedent, the Supreme Court decided corporations and unions could 
advertise in political campaigns and, in conjunction with other 
loopholes in the campaign law, it was possible those contributions 
could be made secretly. When the bill was called for a motion to 
proceed, as we all know, it fell short of the 60 votes necessary to cut 
off debate or to impose cloture. Fifty-nine Senators voted aye that we 
wanted to proceed, 57 Democrats and 2 Independents and all 41 
Republicans voted no.
  I ask unanimous consent to have printed in the Record at the 
conclusion of my remarks an article by Richard Polman in the 
Philadelphia Enquirer and an editorial from the New York Times on the 
DISCLOSE Act.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. SPECTER. The Polman article recites a number of Senators who 
voted no against proceeding with the DISCLOSE Act, having made in the 
past very forceful affirmative statements in favor of disclosure. It 
may be that by reminding those 4 Senators, perhaps 1 of them or 2 of 
them--we only need 1, if the 59 votes hold--they could be persuaded to 
vote aye and proceed to consider the bill. Then we have the advocates 
of McCain-Feingold. If we compare the rollcall vote on McCain-Feingold, 
we find there are a number of Senators who voted no against taking up 
the DISCLOSE Act, Senators who previously had spoken out forcefully in 
favor of finance limitations and in favor of transparency. Perhaps at 
least one of those or perhaps even more could be persuaded to vote to 
proceed with the so-called DISCLOSE Act.
  There has been a plethora of political commentary about the dangers 
to our political system by having anonymous campaign contributions. The 
last election was inundated with money, and the forecasts are that the 
next election will be even more decisively controlled by these large 
contributions and by these anonymous contributions. So to preserve our 
democracy and to preserve the power of the individual contrasted with 
the power of the wealthy, I believe that ought to be very high on our 
agenda.
  There is a corollary to the need for some change, some reform as a 
result of what happened in Citizens United. In that case, we had two 
votes, and they were decisive. To make the five-person majority, two 
votes totally reversed the positions which those Justices had taken not 
too long ago during their confirmation proceedings. Chief Justice 
Roberts was emphatic in his confirmation proceeding that he was not 
going to jolt the system, that he would have respect for stare decisis, 
and that he would have respect for congressional findings. So was 
Justice Alito on both those accounts. In their confirmation hearings, 
the testimony of both was explicit in the statement that it was a 
legislative function to find the facts, and it was not a judicial 
function to find the facts. When Citizens United came down, as the 
dissenting opinion by Justice Stevens pointed out, a voluminous factual 
record showing the dangers and the potential dangers of excessive 
contributions was on the record.
  All that was ignored in the decision in Citizens United and was 
ignored by the commitment which those two Justices made in their 
confirmation hearings not too many years before.
  The best approach in dealing with this issue is to have the public 
understand what is going on in the Court. It is my view and the view of 
many other Senators that we are long past the time when the Court ought 
to be televised so the public would understand what has been going on. 
On repeated occasions, the Judiciary Committee has voted out 
legislation requiring the Supreme Court to be televised. It is an 
appropriate legislative function to impose that requirement. It is up 
to the Congress to decide administrative matters. For example, the 
Congress decides when the Supreme Court will convene. It is on the 
first Monday of October in each year. The Congress decides how many 
Justices it takes to have a quorum--six--to transact the business of 
the Court. It is the Congress which decides how many Justices there 
will be on the Court, and the Congress has set the number at nine. It 
is recalled that an effort was made during the Roosevelt administration 
to so-called pack the Court by raising the number to 15. The Congress 
could have done that. It would have been unwise, but the Congress has 
the power. The Congress decides what cases the Court will

[[Page 17479]]

hear. For example, mandating that McCain-Feingold be reviewed by the 
Supreme Court so the Court's customary discretionary decision on 
granting certiorari or not can be overcome by the Congress. I suggest 
it is time that transparency and understanding by the public should 
come into operation. Justice Brandeis was an eloquent spokesman for 
sunlight being the best disinfectant. It has been said repeatedly that 
the Supreme Court follows the election returns. The Supreme Court 
follows the values of our society in a changing country, which has 
eliminated segregation, changed the rules with respect to sexual 
preferences, changed the rules many times.
  The best way to accomplish that would be to take up this issue, which 
we could take up in this session--this session before the end of the 
year--something I have discussed with the majority leader, something I 
have discussed with the leadership of the House, and we could handle 
this in relatively short order.
  There is another matter which I suggest we ought to take up and 
conclude, and that is the issue of the START Treaty. President Reagan 
set the standard of ``trust but verify,'' but since the end of 2009, 
when the last treaty expired, we have been unable to verify what the 
Russians are doing.
  The START Treaty also provides for beyond verification, provides for 
arms reduction, which is something which ought to be done. There is no 
reason to have these vast arsenals. They can be reduced and it would be 
much less expensive in an era when we are very much concerned about 
governmental costs.
  The 1992 START Treaty, negotiated by President Reagan and by 
President George H. W. Bush, passed the Senate 93 to 6. The 2003 Moscow 
Treaty on arms control, negotiated by President George W. Bush, passed 
95 to 0. So that is a subject which ought to be taken up and ought to 
be acted upon, notwithstanding the objection of a small number of 
individuals. We ought to take that up on the merits and vote it up or 
down. I am sure it would be ratified.
  The issue of don't ask, don't tell is another matter which ought to 
be concluded before the end of the year. We know what has resulted from 
the study ordered by the Department of Defense. Some say we ought to 
know more than we know at the present time. Well, we have considered 
don't ask, don't tell for more than a decade, and I think it is 
palpably plain that the time for the current standards has long since 
run and it ought to come to a vote. To tie up the Department of Defense 
authorization bill on that subject--a bill which has been passed year 
after year after year, going back decades--it is something which ought 
to be enacted by this Congress.
  I suggest further that we ought to take up unemployment compensation 
very promptly. We have millions who are unemployed and an unemployment 
rate of 9.5 percent nationally. There are people who are actively 
seeking jobs who cannot find them. That ought to be a priority item, 
certainly to be accomplished during this session.
  There is one other item which I think we ought to act on; that is, to 
authorize Federal funding for research on embryonic stem cells. That 
legislation has twice been passed, first under the name Specter-Harkin 
and later, when the majority changed, to Harkin-Specter. We should have 
enacted it earlier. We have relied upon an Executive order promulgated 
by President Obama to authorize Federal funding, and then in a surprise 
decision the United States District Court for the District of Columbia 
ruled that the Executive order violated the existing statute.
  Well, it is not a constitutional issue. The Congress can change that. 
The order has been appealed to the Court of Appeals for the District of 
Columbia Circuit, and the order has been stayed, which means at the 
present time research can proceed with Federal funding. But it is a 
very uncertain matter. As testified to by Dr. Collins, the Director of 
the National Institutes of Health, the scientists who are working under 
NIH grants are very much in doubt as to what is going to happen. There 
is some $200 million and more than 200 projects which hang in the 
balance. On embryonic stem cell research we are dealing with a life-
and-death situation, and there ought not to be hesitancy or doubt in 
the minds of those scientists.
  The objection has been raised that these embryos could produce life. 
Well, if there were any chance that would happen I think no one would 
be in favor of using them for scientific research. But the fact is, 
there are some 400,000 of these embryos frozen, and they are not being 
used to produce life.
  Back in 2002, when I chaired the Appropriations Subcommittee on 
Health, I took the lead in Federal funding to assist individuals who 
wanted to adopt these embryos to have them produce life. Some $9 
million has been appropriated in the intervening years, but only 242 of 
these embryos have been adopted to produce life. Meanwhile, in 2008, 
the most recent year for which statistics are available, more than a 
million people died from heart disease and cancer.
  We have the capacity, the opportunity, through these embryos, which 
replace diseased cells, to deal with stroke, to deal with heart 
disease, perhaps to deal with cancer. We do not know. But there is much 
that can be done, and Congress has the authority to clarify the 
situation. It could take years pending in the Court of Appeals for the 
District of Columbia, with the time for briefing and argument and 
decision, and possible appeal to the Supreme Court of the United 
States. But it is a matter that Congress can act on, and twice we have 
already acted, and both times vetoes were successfully handed down by 
President George W. Bush.
  So there is much we can do during this session of Congress if we make 
up our minds to do it.
  One other lesson which we have seen from the current election is the 
tremendous power which has been exercised by the extremities of both 
political parties, and we have seen this in recent years. We have seen 
an excellent Senator such as Senator Joseph Lieberman who cannot win a 
Democratic primary, and we have seen an excellent Senator such as Bob 
Bennett, with a 93-percent conservative rating, who cannot survive the 
nomination process in Utah. Those are only a couple of cases. Many more 
could be cited.
  But we have also seen that when the voters are informed and the 
voters are aroused that we are still a country which has a constituency 
which desires to be governed from the center, not on either extreme, 
and the primary elections bring out those on one side or the other.
  But we have the situation with Senator Lisa Murkowski which 
demonstrates the point that there is still a dominant voice in the 
center. Senator Murkowski lost her primary election, illustrative of 
the principle I mentioned a few moments ago about the primaries being 
dominated by the extremes. But then, in a spectacular write-in 
campaign, it now appears Senator Murkowski will be reelected--the first 
time that has happened since Senator Thurmond won on a write-in 
campaign in the 1950s, and that is a pretty tough proposition. You have 
to have the spelling right. ``Murkowski'' is not the easiest name in 
the world to spell, notwithstanding the fact that it has been 
popularized not only in Alaska by her distinguished father--elected at 
the same time I and others were elected to this body--and it is not 
certain but it looks pretty likely that Senator Murkowski will be 
remaining in the U.S. Senate.
  So when the electorate understands what the issue is--and there was 
so much publicity that the electorate did--and when they are aroused 
and motivated to action, I think it is very strong evidence that 
America, illustrated by Alaska, wants to be governed from the center. 
So I think that is something that ought to be noted by this Congress in 
the last 45 days of this year as we look over a tremendous number of 
very important issues.
  I have not covered the entire range of issues which we ought to 
consider, but I think I have covered some which ought to be handled by 
this session of the Congress and that the duck ought to spread its 
wings, show it is not lame, and get something done to operate in the 
interests of the American people.

[[Page 17480]]

  I thank the Acting President pro tempore and yield the floor.

                               Exhibit 1

            [From the Philadelphia Inquirer, Oct. 31, 2010]

            The American Debate: Secret Donors vs. Democracy

                            (By Dick Polman)

       Can we all agree that secret money in politics is a bad 
     thing?
       OK, you're with me. So far, so good.
       And can we all agree that the Republicans have been 
     hypocrites on this issue--having long declared that they were 
     against secret money, only to flip-flop in 2010 and declare 
     that they were for it?
       OK, now I've probably lost half of you. But bear with me.
       Thanks to a number of factors--a historic Supreme Court 
     decision that has inspired wealthy donors to pony up, a tax 
     code riddled with loopholes, and toothless federal 
     watchdogs--a record amount of secret money, topping $250 
     million, is flooding the Senate and House races. We have no 
     idea who these donors are, yet we've all seen their handiwork 
     in TV ads. From the shadows, they create front groups with 
     vacuously pleasing names--something like Concerned Citizens 
     for the Betterment of Mankind, or Americans for Puppies, 
     Apple Pie, and the Fourth of July.
       By the way, even though it's true that the Republicans have 
     trumped the Democrats in the secret-money race by more than 
     2-1, I don't mean to imply that the GOP is poised to win big 
     Tuesday night simply because its anonymous donors wrote big 
     checks. Nancy Pelosi may think so--the House speaker recently 
     said, ``Everything was going great, and all of a sudden 
     secret money from God knows where, because they won't 
     disclose it, is pouring in''--but she is wrong. Long before 
     the GOP's richest fans ever got involved, hardly anything was 
     ``going great'' for the Democrats.
       But the secrecy, in itself, is an affront to democracy and 
     the principle of transparency. People give big money for a 
     reason; we may never know what they got in return. We have 
     essentially legalized the practice of backstage bribery, and 
     2010 is a mere tune-up for the presidential race in 2012.
       Last winter, after the U.S. Supreme Court freed up 
     corporations, unions, and other special interests to spend 
     campaign money more easily, rich people felt more emboldened 
     to finance the GOP's efforts. But they didn't want the public 
     to know who they were. So, a few intrepid Republican 
     strategists, including Karl Rove, came up with a clever fix. 
     They created nonprofit groups under a section of the tax code 
     reserved for ``social welfare organizations'' that allows 
     donors to fork over unlimited money without being publicly 
     named. And the secret money has flowed unabated ever since.
       So you might be wondering, ``Doesn't the public have a 
     right to know who these donors are? How come Congress hasn't 
     done something about this?'' Well, guess what? Congress has 
     tried. In the spring and summer, the ruling Democrats sought 
     to pass the Democracy Is Strengthened by Casting Light on 
     Spending in Elections Act (which proves that Democrats will 
     never work on Madison Avenue). Known commonly by its acronym, 
     the DISCLOSE Act, it would essentially force these donors 
     into the open. It passed in the House--with virtually all 
     Republicans voting no. It went to the Senate, where it 
     lingers today because Republicans won't let it come up for a 
     vote.
       I warned you that I would bring up the Republicans' 
     hypocrisy, defined here as the chasm between what they once 
     professed to believe and what they now practice.
       Back in the days when Republicans were strongly opposed to 
     campaign-finance reform (this was a decade ago, when John 
     McCain was mavericky in his efforts to curb big money in 
     politics), they insisted that full disclosure was the best 
     solution, that as long as the voters could see who's giving 
     the big money, voting decisions could be made on that basis 
     and democracy would be alive and well.
       So said George W. Bush, for instance, when he first ran for 
     president in 2000. But let's go down the list.
       Here was Sen. Mitch McConnell, the chamber's current GOP 
     leader, during a 2000 appearance on Meet the Press: 
     ``Republicans are in favor of disclosure.'' That year, he 
     also said that ``the major political players in America'' 
     should be subject to disclosure; in his words, ``Why would a 
     little disclosure be better than a lot of disclosure?'
       Here was Lamar Alexander, now a Tennessee senator but 
     speaking as a presidential candidate in 1999: ``I support . . 
     . 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.''
       Here was Texas Sen. John Cornyn's philosophical stance just 
     six months ago: ``I think the system needs more transparency, 
     so people can reach their own conclusions.''
       Here was Alabama Sen. Jeff Sessions, just six months ago: 
     ``I don't like it when a large source of money is out there 
     funding ads and is unaccountable . . . I tend to favor 
     disclosure.''
       Al four have been blocking the DISCLOSE Act. Meanwhile, on 
     the House side, GOP leader John Boehner said in 2007, ``We 
     ought to have full disclosure, full disclosure of all of the 
     money that we raise and how it is spent. And I think that 
     sunlight is the best disinfectant.'' But when the DISCLOSE 
     Act came up in the House this year, Boehner voted for 
     darkness.
       Actually, Rove's group, American Crossroads, has engineered 
     the best flip-flop. It was launched this year as a full-
     disclosure enterprise; one of its board members, ex-GOP 
     national chairman Mike Duncan, said in May, ``I'm a proponent 
     of lots of money in politics and full disclosure in 
     politics''--the traditional GOP position. He voiced his 
     support for ``full accountability.'' But when the potential 
     big donors voiced their distaste for sunlight, the Crossroads 
     gang deep-sixed its disclosure talk and created an offshoot 
     in the aforementioned secrecy section of the tax code. That 
     got the bucks flowing.
       And don't expect the feds to police this behavior. Under 
     the tax code, these social-welfare organizations are 
     supposedly barred from spending more than half their money on 
     politics. But the Federal Elections Commission has a well-
     deserved reputation for allowing political operatives to play 
     fast and loose with the rules. Indeed, the FEC is set up for 
     stalemate; even if its three Democratic commissioners wanted 
     to move against secret money, its three Republican 
     counterparts would likely block the move.
       All told, if sunlight is indeed the best disinfectant (as 
     Boehner once believed, when he borrowed the phrase from 
     Justice Louis Brandeis), then I suppose we must now gird 
     ourselves indefinitely for the toxins that flourish in the 
     dark.
                                  ____


                [From the New York Times, Nov. 4, 2010]

                         Campaign Money To Burn

       After Tuesday's vote, there is no limit to the ambitions of 
     stealth political groups bankrolled by anonymous check 
     writers. Two of the flushest pro-Republican operations, 
     American Crossroads and Crossroads GPS, plan to extend their 
     campaigning into the lame-duck session of Congress with waves 
     of misinformation about tax and immigration issues.
       The moment could not be more pressing far lame-duck 
     senators to revisit--and pass--the ``Disclose Act.'' It has 
     been approved by the House and would mandate that the public 
     at least be told which deep-pocketed corporate and union 
     donors are politicking from the underbrush. The measure 
     failed by one vote in a September filibuster by Republicans.
       The Democratic majority needs just a few Republicans to 
     break party lock step and stand up for politicking in the 
     sunshine. Republicans who once made disclosure their mantra 
     (as an alternative to robust limits on contributions) are 
     predictably backing away.
       One Republican newcomer, Senator-elect Mark Kirk of 
     Illinois, did offer a ringing endorsement of disclosure in 
     the campaign. Asked in a debate about the $1.1 million in 
     advertising support that he received from Karl Rove's 
     Crossroads GPS, Mr. Kirk firmly insisted special-interest 
     groups writing campaign checks ``should reveal their donors 
     and be fully transparent.''
       And after winning a special election for President Obama's 
     former Senate seat, he will be eligible in the lame-duck 
     session. He can deliver for his voters, and make his mark 
     early, by supporting the Disclose Act.
       The so-called Republican moderates--Olympia Snowe and Susan 
     Collins of Maine and Scott Brown of Massachusetts--have been 
     critical of what seem to be peripheral details. If it takes a 
     stripped-down version to win enactment of true disclosure, 
     that is worth pursuing.
       The Democratic majority leader, Harry Reid, back from the 
     brink of defeat in an election rife with murky check writers, 
     needs to push hard and be ready to deal. The lame-duck 
     session offers the last realistic chance for a donor 
     disclosure law before secretive organizations up the ante and 
     mayhem for the 2012 presidential campaign.

  The ACTING PRESIDENT pro tempore. The Senator from North Dakota.

                          ____________________