Tuesday, July 17, 2012
Floor Speech: Disclosure of corporate money and sup
Mr. President, I rise today to join the chorus of voices from our caucus who have tonight spoken to the value, to the importance of transparency in elections. Transparency, as we all know, is critical for free and fair elections and for democracy to function, because the people of this country--the voters, the constituents, those whom we serve and those who hire and fire all who serve them at Federal and State and local offices--need to know who they represent, who is funding their campaigns, what goals they will pursue in office, and whether the ends serve their interests. Tonight, as the Presiding Officer knows all too well, colleagues have joined to speak in support of the DISCLOSE Act--a bill that would make important progress toward clearing away the clouds that have been laid on the face of the American body public because of the decision of Citizens United.
The integrity and the fairness of our elections is at the very heart of American democracy. It is in some ways the proudest legacy of our Founding Fathers and, in my view, a beacon to the rest of the world. A difficult, a regular part of modern electioneering, of modern campaigns, is campaign ads. In fact, many of us spend a huge amount of our time raising the money and delivering the content to connect with our constituents through television. I am blessed to represent a small state--roughly 800,000 souls--so we actually get to campaign door to door, to go door-knocking, to meet people in person in my State. But, still, television ads play a very important part. In other larger States, folks will often never even meet in person the candidates for offices in the House and in the Senate or for President, and television ads there dominate the whole campaign election process. No one likes campaign ads, but they are a part of our politics, and an effective and, sadly, a powerful part as well.
For most of our modern political history, voters at least knew who the ads were coming from--the candidates and the parties that supported them--and could make judgments accordingly. If someone thought an add was too nasty, they could vote against the candidate who ran it. That is the whole point, forcing us as candidates to own our ads, to say, "I am Chris Coons and I approved this ad." We all know as candidates who have stood before our electorate how it feels to put our personal name, our face, to an ad that might be hitting a little too hard, and that pulls us back from sometimes overreaching.
But what we are here to talk about tonight is the whole new world that has been unleashed by a Supreme Court decision. In my view, the basic right of every American to free and fair elections has been compromised by a new flood of tens of hundreds of millions of dollars from wealthy individuals, from corporations, from shadowy national special interest groups, since the Supreme Court, through Citizens United, opened these floodgates to unlimited secret campaign activities, threatening to overwhelm the fundamental trust of our constituents and the transparency so essential to our democracy.
As a lawyer, Citizens United was one of the most surprising Supreme Court decisions of my life, because it radically upended settled constitutional understanding as well as bipartisan agreement that had been reached here in the Senate regarding appropriate limitations on corporate speech. When the McCain-Feingold law passed in 2002, 6 years prior, it showed a strong bipartisan intent to rein in corporate spending, to rein in and manage spending by interests of all kinds in politics. That is why I was shocked when, in the opinion in Citizens United, it was joined by the so-called "originalist" or "strict constructionist" members of the Court. The originalist mode of interpretation of the Constitution attacks every question by asking a common question: Would the Framers have thought the action or law being challenged before the Supreme Court is constitutional?
That is why, if one had asked me in 2008, looking at Citizens United and at the issues presented to the Court, whether an originalist interpreting the first amendment would have found the corporate electioneering regulations this body had adopted in McCain-Feingold to be valid, it seems to me there was only one possible answer, and that was yes.
Our Founding Fathers recognized corporations are creatures not endowed, as the rest of us are, with inalienable rights. They are, rather, fictional, legal creatures--creatures of legislative grace. Were this not the case, the corporation by the name of Citizens United--the corporation that was at issue in this decision--wouldn't have stopped at simply making a movie attacking Hillary Clinton, but would have actually cast a vote against Hillary Clinton. Of course, it couldn't. Corporations don't have bad hair days; corporations don't have tasteless ties; corporations don't have moods and opinions. Corporations are not people. They exist as people only in legal fiction.
I would note the first amendment states: "Congress shall make no law . . . abridging the freedom of speech, or of the press." If freedom of speech included fictional entities, nonhuman entities such as corporations, there would have been no reason to separately affirm that the press also enjoyed that freedom granted to real, living, breathing individuals. In my view, then, Citizens United was wrongly decided.
As shown through a long line of legislative and judicial interpretation, a view of corporations as having first amendment rights that are limited, and can and should be limited more than can be limited for real, living, breathing individuals, has remained the dominant one throughout our modern history.
In 1907, the Tillman Act prohibited campaign contributions by corporations. In 1947, the Taft-Hartley Act prohibited expenditures and the application of this law further. It was upheld by the Court in 1957 in U.S. v. Automobile Workers. When the Supreme Court first made the leap from the expenditure/contribution distinction in Buckley v. Valeo in 1971, even then it left intact the longstanding distinction between the first amendment rights of living, breathing individuals and corporations--legal fictional entities.
In the 1982 case of FEC v. National Right to Work Committee, Justice Rehnquist wrote for a unanimous Court that it was proper to treat corporations more restrictively than people. Oh, how I wish that were the majority opinion of the Court today.
The further analysis in 1986 in FEC v. Massachusetts Citizens for Life, though striking down restrictions on speech by a pro-life organization, actually underscored the original understanding that when the Constitution protects corporate speech, it only does so as a proxy for the underlying free speech rights of real, living, breathing individuals. In that case, a nonprofit organized and funded specifically for the purpose of bringing about a political goal--pro-life policies--was seen as having free speech rights only because of the rights of those individuals who funded it and organized it. When we talk about a corporation's first amendment rights, then, we should be using shorthand for the first amendment rights of those who are its shareholders or who own it or who control it.
The corporate/individual distinction was even again affirmed as recently as 1990 in the Austin case.
The constitutional history of limitations on corporate speech was so clear that the Supreme Court had upheld the McCain-Feingold Act in 2003, just 6 years before they struck it down. What possibly could have changed in those intervening years that would be so convincing to an originalist mindset? I don't know. In my view, this decision did not make sense. But I do know that campaign finance, which was a bipartisan issue in this Chamber in 2003, where Senator Feingold and Senator McCain, a Democrat and a Republican, led a strong bipartisan coalition to rein in the negative influence of special interest money--that has changed. That has shifted to today, sadly, a starkly partisan issue.
As we have seen today, Senator after Senator of the other party has risen to speak about lots of issues, but none has addressed head-on why disclosure is no longer in the best interests of our citizens, why transparency is no longer essential to democracy. Yet Democrat after Democrat, Senator after Senator from my side of the aisle, has risen to stand firmly with those organized by Senator Whitehouse who has led so ably this discourse on the floor today, who view the DISCLOSE Act not as curing the errors of Citizens United but as striking one important blow, to ripping the cover off the millions of dollars in secret contributions that today I think threaten to swamp our electoral ship.
If the Citizens United case has tilted elections toward those with the money to buy them, the DISCLOSE Act is to me an opportunity to level the playing field a little bit. Instead of with money, it arms voters with information.
The DISCLOSE Act does just what its name suggests: It requires disclosure. It requires any covered organization, including unions, corporations, and super PACs, which spends $10,000 or more on certain campaign activities to promptly file a report with the FEC--to file a report with the Federal Election Commission--within 24 hours. This brings some measure of fairness and transparency back to our elections so voters can make informed decisions instead of simply being pushed and prodded and ultimately duped by a flood of negative ads.
I am confident it does not restrict or limit free speech of any kind. This bill simply allows voters--those who are in the driver's seat or should be in our system, those who hire and fire us--to see who is spending money to influence their decision at the ballot box.
The DISCLOSE Act imposes the minimum possible burden on organizations spending vast amounts of money on elections, while still requiring the kind of prompt and timely disclosure voters deserve and expect in this electronic, in this digital age, where the ads that flood the airwaves, that push for a decision, happen so close to an election that it is important to have disclosure real time.
We voted on the DISCLOSE Act earlier tonight, but my colleagues across the aisle lined up in lockstep against it. Sadly, every Member of the other party voted against it. What is so wrong with voters having information about who is trying to influence their vote? Why is this basic information so important to hide from the American people? Public disclosure of campaign contributions and spending should be expedited, should be swift, should be available so voters can judge for themselves what is appropriate.
I could not agree more. I agreed when the esteemed Republican leader said those exact words in 1997, and I agree with them today. "Disclosure" he said, "is the best disinfectant."
Earlier today I had the honor of presiding, as you do now, Mr. President, and I got to listen to the Republican minority leader speak against disclosure. There are many other issues to which we can and should turn. There are many other important issues before our country, and he raised them all in turn. But the thing I had the hardest time with was his leading the other caucus, one after the other, to speak against, to vote against disclosure--something he himself, the Republican leader, spoke so forcefully in favor of as recently as 1997: "Disclosure is the best disinfectant." Back then, the talking points for the other caucus were: Spend all you want. There should be no limits on campaign contributions as long as there is disclosure. Disclosure will keep things open and fair.
Sadly, today, even that small measure of rationality has been openly abandoned. Voters in my home State do not want secret spending clouding the legitimacy of our elections. They want to exercise this most basic American right out in the sunshine--with knowledge, with information about who backs whom--just as, I believe, our Founders intended.
Let's face it, folks. These super PACs are not raising hundreds of millions of dollars to run campaign ads that are updates on the latest sports scores; that are filled with YouTube videos of sneezing pandas or yawning kittens. These super PACs are gearing up to run the most negative possible campaign ads--the sorts of ads that can change hearts and minds because they have no accountability, because they have no one's name at the bottom line, because they feel free and are free to make the nastiest and most unfounded personal attacks.
Four years ago, at this point in the campaign cycle, just 9 percent--9 percent--of the political ads on TV were negative, according to the Wesleyan Media Project, which has scored ads by their negativity or positivity. Just 9 percent.
What do you think that number is this year? At this stage, this still early stage in campaigning, 70 percent. Seventy percent of the ads have been negative, and it is only July. It is not even August.
At the same point in 2008, 3 percent for the ads came from outside groups like super PACs. This year, 60 percent have been paid by outside groups. Campaigns themselves have inevitably, as a result, taken on a more negative tone, a more caustic aspect. There is no doubt in my mind that the primary mission of most super PACs is to fund the sorts of ads that destroy candidates and campaigns, that tear them down, that contribute to the steady pollution and degradation of our political discourse. They are raising money to buy television ads that assault the fame and destroy the candidates they do not like.
This same study from the Wesleyan Media Project bears that out. It found that 86 percent of the ads the super PACs and interest groups have run during this cycle have been negative. Is there any wonder then that our campaigns, our politics, our culture has become more steadily divisive and on this floor more consistently divided?
There are no centrist super PACs. There are no (c)(4)s that are determined to fund a message about bringing America together. These super PACs are designed to divide us, and they are doing a great job.
At the end of the day, one of the questions we have to have for the citizens of America is, what does this mean for you? What does it mean to have tens or hundreds of millions of dollars pouring into negative ads, driving the outcome of elections at the State and Federal level that simply divide us? It means more partisanship. It means more rancor. It means less progress. It means fewer problems solved.
If the intentions of these super PACs, of these special (c)(4)s, were so positive, then why would they need to hide whom they were supporting? Why would they need to conceal the purposes of the ads they support?
Let me, if I might for a few moments, respond to some things I heard earlier today from Republicans while I was presiding and while I was watching in my office.
One of my Republican colleagues earlier today claimed the DISCLOSE Act does not apply to labor unions and suggested that this was a big wet kiss to organized labor from my side of the aisle. This suggestion was made by several in leadership. It is a ludicrous claim. Every provision in the DISCLOSE Act applies equally to covered organizations, corporations, business associations, membership organizations, and unions.
Why have a $10,000 threshold? To reduce the burden on all membership organizations of all kinds; the $10,000 threshold is enough to cover 93 percent of the money raised by these super PACs and thus does not needlessly burden national membership organizations, with thousands of members who contribute $25 or $50 or $100.
It is these handful of folks, who are contributing huge amounts of money, whose contributions we hope to expose to the sunshine, to make positive contributions to allowing voters to know who is contributing to whom and why.
One other thought I want to add to tonight's debate is, as the Africa Subcommittee chair on the Foreign Relations Committee, I often have the opportunity to hear from and meet with legislators and heads of state from Africa who come to meet with us here in Washington. They come to the United States to listen to us and to hear from us how our democracy functions, because for much of the world we are considered the gold standard of how to run free, fair, and open elections, of how to deliberate as an open and positive body, of how to be accountable to and serve the people of the United States.
We already have some challenges making progress, listening to each other, and getting past the partisan divide. But if we already have challenges, if the folks listening wonder whether the Senate of the United States listens to our citizens enough, just wait until another billion dollars of secretive special interest money pours into our campaigns.
In my view, one of the things we can hold up to the rest of the world is that we have clean, fair elections. This decision by this Supreme Court, in Citizens United, threatens that at its very core. This flood of money suggests that what is our greatest accomplishment in many ways as a nation is at very real risk. We cannot, in my view, lose the moral high ground of being a country that has fought so hard for so long to be a place where every person--every real person--has an equal vote and an equal right to be heard.
The unfortunate reality is we are not going to be able to amend the Constitution to repeal the Citizens United decision this year. I wish we could. But it is not going to happen on that timeline. As we saw earlier today, this Senate is apparently not even willing to require the slightest bit of transparency and accountability by passing the DISCLOSE Act, as we should. Maybe we will get the votes tomorrow. Maybe after listening to this tonight, after hearing from us, our constituents will be moved to contact other Members of this body.
But I am concerned. I am concerned that the Congress is not going to be able to stem the massive influx of cash into our elections this year or this cycle. It may, in fact, be too late for that. There is a reason campaigns and super PACs fund these negative ads. They work. They are designed to go around your head and target your heart. They move you to vote on what you are afraid of, not what you aspire to. And they can be so highly effective.
I do not like negative ads. The Presiding Officer does not like negative ads. Our citizens and our constituents do not like negative ads. We still have a choice, though. We may not yet be able to amend the Constitution. We may not be able to persuade the other side to pass the DISCLOSE Act this time. But we can allow ourselves instead to say, we will not listen to these craven, destructive ads. We can change the channel. We can ignore the ads. We can learn about candidates and their records. We can vote from a place of power instead of fear. Each and every one of us, each and every citizen, can be more powerful than the Supreme Court, can be more powerful than the billionaires and corporations who are trying to sway our votes by deciding to be better with our politics, by deciding to listen past the smear campaigns and the negative attacks.
It is my hope we will be able someday to pass the DISCLOSE Act and to amend the Constitution. But until then, I am left with this: With the encouragement of my colleagues, with confidence in our citizens, and with optimism that somehow through this smear campaign of super PAC ads the truth of the American system will still be shown to the world.
Thank you. With that, I yield the floor.