Thursday, May 1, 2014
Floor Speech: Big spending is corrupting our politics
As Delivered on the Senate Floor
Madam President, I come to the floor today to speak about the corrupting power of money in our national politics and the tragic impact of a whole series of decisions by the Supreme Court that has steadily strengthened that power.
Madam President, over the last 40 years, bipartisan coalitions in this body, bipartisan coalitions in Congress have come together behind commonsense measures that actually succeeded in limiting the power of money in politics.
Most recently, back in 2002, a bipartisan coalition in this chamber, led by Senators John McCain and Russ Feingold – Republican and Democrat – took a few steps to limit the use of so-called ‘soft money’ and to ban special interests from pouring money into national elections in the month or two before Election Day.
As actual elected representatives, the perspective of the members of Congress who enacted that legislation was informed by their real experiences as public officials who have run in and won elections – and who have written, and fought for, and passed actual legislation.
And since members of this chamber, members of this Congress, have seen, have experienced the corrosive effect of money every day, Congress, in my view, should be given great deference when it has been able to transcend partisan divisions and put in place commonsense protections.
Yet over the past few years, a bare majority on the current Supreme Court has in decision after decision dismantled many of those critical protections – and shows no signs of stopping.
In doing so, this court’s decisions display a significant, a stunning naiveté about how our political system actually works, how it is continuing to change, and as a result, I think, have brought us closer to a world where, as a recent New Republic piece argues, quote, “millionaires and billionaires speak loudly and the rest of us to do the listening,” unquote.
Most recently, in a 5-4 decision, the Supreme Court struck down a limit that has stood since 1971 – when Congress passed the Federal Election Campaign Act – on total campaign donations any one individual may make in the same federal election cycle.
Before this recent Supreme Court ruling, individuals couldn’t give more than $117,000 between candidates and party committees. After the ruling, that limitation has been swept away, and there is nothing to stop a wealthy donor, an ultra-wealthy donor from contributing to every federal race each election cycle.
Some here have cheered the decision as upholding the first amendment and free speech, but in my view, when you’re able to spread around hundreds of thousands of dollars in donations to dozens and dozens of candidates in a coordinated way, you’re not speaking, you’re coming dangerously close to buying.
For ultra-donors, the reality is not just about making their voices heard. Under existing Supreme Court precedent, under these recent decisions, there are no limits on anybody’s ability to spend whatever amounts he or she wishes to conduct actual speech, to buy newspaper ads, television spots, or even to make a politically motivated movie. The reality is that it’s about trying to control more and more of the legislative agenda of this Congress, and more and more of the direction of our government.
In McCutcheon, this recently decided case, the Supreme Court hasn’t just enabled speech; it’s made it dramatically easier for the wealthiest and the special interests they represent to hedge their bets by diversifying their political portfolio.
It has more in common sadly with Wall Street investment strategies than with the free speech rights envisioned by our founders at the Constitutional Convention.
Frankly, I think the founders would not recognize our political system today, and the increasingly harsh influence of big money donors in our overall national political scene.
Together with the Citizens United decision by the Supreme Court of just five years ago, we see, I think, the truly dangerous implications of the decisions rendered.
One of the boldest decisions I’ve ever seen, Citizens United, was another 5-4 decision, and killed off nearly half of that bipartisan compromise bill from 2002 of McCain-Feingold, by allowing corporations and other special interests to anonymously fund campaign ads in the months before an election.
In doing so, as Justice Stevens wrote in a dissent, the Supreme Court, and I quote, “rel[ied] largely on individual dissenting opinions… blaz[ing] through [our] precedents [and] overruling or disavowing a body of case law.”
Justice Stevens also noted that, to do so, the Court decided a question the parties did not present directly to it; that, and again I quote, “Essentially, five Justices were unhappy with the limited nature of the case before [us], so [they] changed the case to give themselves an opportunity to change the law.”
Now I understand this is a dissent, but it’s a dissent that I think should draw our attention to the direction that these two vital, difficult Court decisions are taking this nation.
Soon after, the Supreme Court extended the rules to state campaign finance laws as well.
So in combination, these two decisions, McCutcheon and Citizens United, have brushed aside important bipartisan legislation that was designed to prevent corruption of the political branches and to provide Americans some level of confidence that their voices, not just those of the ultra-wealthy and powerful, matter to their elected representatives.
We’ve all seen the impact of this decision, of Citizens United in particular, as commercials by groups nobody’s ever heard of, funded by donors who can remain in the dark, have flooded the airwaves of our election years ever since.
Now, earlier I mentioned that these two decisions show a stunning naiveté about how politics in our modern world really works.
And, let me be clear, I don’t say this because the Supreme Court overturned a law that Congress passed. It is the Court’s job to be a check on Congress, to defend our fundamental freedoms in the face of Congressional overreach or improvident action.
But in the McCutcheon decision, the court overturned a core holding of its own previous decision in Buckley v. Valeo, the case it purports to apply.
As Justice Breyer wrote in dissent, in McCutcheon, the court’s holding, quote, “understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole [that]… taken together with Citizens United… 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.”
For instance, in the Court’s decisions, it consistently refers to traditional political corruption as quid-pro-quo corruption, corruption of the sort where a specific contribution is made for a specific vote or action, in arguing that campaign donations and political spending, or speech, have shown no signs of leading to corruption.
The Majority argues that campaign giving and the, quote, “general gratitude” that a candidate or elected official may feel is not the same thing as quid-pro-quo corruption in the sense of directly buying votes or action in the Congress.
But as Justice Breyer notes in his opinion in McCutcheon, in the dissent, the majority’s, quote, “narrow view of corruption... excludes efforts to obtain influence over access to elected officials or political parties,’’ close quote.
Every single member of this body, and every member of the House of Representatives, knows that to be true, and knows this influence to be pernicious.
Let me give an example.
As many of my colleagues would attest, hanging over everything we do is the shadow of anonymous big money ads getting dropped onto the airwaves out of nowhere in just the last weeks before an election. And it influences, in pervasive and corruptive ways, decisions made in this body week in and week out.
Of course, tough opposition ads are nothing new. Robust debates in campaign season go back to the very first campaigns of this Republic. And as politicians we all welcome the opportunity to engage with those who disagree with us. That’s an important and healthy part of our democracy, and every citizen should have the right to voice their opposition to me or to any member.
But what is a huge problem, is the fact that nobody knows who’s behind these ads, making it easier for any wealthy individual or corporation to pour an unlimited amount of money into a race behind completely false attacks.
Because the donor is often in the dark, there’s no way for the public to know who the claims are coming from or whether they’re credible.
That’s why in this chamber, folks in my caucus, Democrats, have repeatedly argued for our taking up and passing the DISCLOSE Act, which would require third-party ads to say who funded them, so that citizens can reach their own conclusions.
This is an increasingly difficult problem for our country.
In the 2010 election cycle, Super PACs spent more than $62 million nationally.
Through the 2012 cycle, outside groups spent an incredible $457 million on House and Senate races.
So far in this cycle, they’ve already raised and spent more than $200 million.
The result is that every campaign has to do more and more fundraising so they have the resources to rebut the claims made in these negative ads with concealed donors.
That means more time on the phone or at fundraisers, travelling around the country organizing and carrying out fundraising activities rather than engaging with our constituents and diving into the details of policy.
It’s even worse in the House where the daily demands and their two-year cycle are even more compelling.
Let me offer one brief stat, in the average winning Senate race in 2012, it cost $10 million, which means the winning senator had to raise $4,600 every single day over a six-year term.
That’s time not spent on solving the real issues facing our country.
That’s an unbelievable amount of time dedicated to fundraising, and it just doesn’t end, whether the term is two or six years.
I know I have it relatively easy, little to complain about compared to my colleagues. I come from a small state, the very modest amount we have to raise in a competitive race in Delaware pales in comparison to much larger states with much more expensive media markets. But it is a problem for this entire body and this entire country.
Let me offer one last example of, concretely, why this matters.
As we debate here, and the other party complains about the absence of opportunities to offer amendments and the lack of a robust and open amendment process, one of the reasons we often do not take to the floor and vote on competitive, compelling, difficult amendments, is the concern that they will then become the subject of last minute, aggressive, targeted campaign ads funded by undisclosed donors.
Rather than being a chamber of honest and open and free debate, the shadow of secret money turns policymaking into a beacon of risk aversion.
Policymaking gets paralyzed. And this serves no one.
Though it’s not an example of corruption in the quid pro quo sense that the Supreme Court so narrowly focuses on, money does corrode the public trust, and steadily corrupts the system in a thousand different ways.
The irony of this all is that we badly need an honest conversation about the impact of big spending and fundraising on our political system.
At this point, Madam President, I believe we badly need fundamental changes to redirect the decisions and the attention of the Supreme Court.
Buckley v. Valeo, the 1976 decision by the Court that equated political contributions – money – with speech, in my view, needs to be revisited.
So Senator Udall of New Mexico has introduced a constitutional amendment that, in my view, restores the balance of that original law and decision, and it’s one I strongly support.
By bending backwards to declare anything that corporations or the ultra-wealthy wish to do with their money the equivalent of speech, today’s Court, in my view, rather than strengthen speech, has weakened it for the millions of Americans who can’t afford to play in this new system.
And at a time of growing economic inequality, Madam President, that concerns me more and more, because this new political inequality threatens the very foundations of our democracy.