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National Defense Authorization Act For Fiscal Year 2010 - Conference Report - Resumed

Floor Speech

By:
Date:
Location: Washington, D.C.

BREAK IN TRANSCRIPT

Mr. McCAIN. Mr. President, I am joined by my friend and colleague and fellow warrior, Senator Feingold. He and I both have some remarks to make. I was chosen to go first, and then Senator Feingold, I know, will also want to address what we think is a very important issue.

This is the issue of the U.S. Supreme Court case Citizens United v. Federal Election Commission.

On September 9, the U.S. Supreme Court heard oral arguments from both sides in the Citizens United v. Federal Election Commission. The implications of this case are very serious, and the Supreme Court's decision could result in the unraveling of over 100 years of congressional action and judicial precedent with respect to corporate spending in political campaigns. Senator Feingold and I were present in the Supreme Court chamber for the arguments in this case. I commend both sides for presenting their case in a thoughtful, intelligent manner. However, there was one part of the argument I found particularly disturbing.

While responding to a question from Justice Alito, the Solicitor General was interrupted by Justice Scalia, who said:

Congress has a self-interest. I mean, we--we are suspicious of Congressional action in the First Amendment area precisely because we--at least I am--

Here is the interesting part, when Justice Scalia said:

I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so.

Yes, I think it is excessively cynical. I take great exception to Justice Scalia's statement, as should every Member of both Houses of Congress. It is an affront to the thousands of good, decent, honorable men and women who have served this Nation in these Halls for well over 200 years. Not only was Justice Scalia's statement excessively cynical, it showed his unfortunate lack of understanding of the facts and history of campaign reform. Throughout our history, America has faced periods of political corruption, and in every instance, Congress has risen above its own self-interest and enacted the necessary reforms to address the scandals and corruption that have plagued our democratic institutions over time and throughout our history. The Tillman Act in 1907, the Publicity Act of 1910, the Federal Corrupt Practices Act in 1925, the Public Utilities Holding Act in 1935, the Hatch Act in 1939, the Smith-Connelly Act in 1943, the Taft-Hartley Act of 1947, the Long Act in 1968, the Federal Election Campaign Act in 1974, and the bipartisan Campaign Reform Act in 2002 are just some of the reforms enacted by Congress over the years to address corruption in our government and in our campaigns.

Simply put, history has proven Justice Scalia wrong in his assessment that Congress will not act in anything but a self-serving manner.

Justice Scalia's statement was also remarkable in that it exposed his belief that when it comes to issues relating to campaign reform, he somehow is a better arbiter of what is needed to reform the electoral process than the Congress or the American people. With all due respect, that is not the job of the judicial branch. Judges who stray beyond their constitutional role to try and take Congress's place as policymakers falsely believe that judges somehow have a greater insight into what legislation is necessary and proper than representatives who are duly elected by the people and accountable to them every several years.

Activist judges--regardless of whether it is liberal or conservative activism--assume the judiciary is a superlegislature of moral philosophers, entitled to support Congress's policy choices whenever they choose. I believe this judicial activism is wrong and is contrary to the Constitution.

Our Constitution is very clear in its delineation and dispersement of power. It solely tasks the Congress with creating law, not the courts. I have a long history of opposing activist judges. Judicial activism demonstrates a lack of respect for the popular will, and that is at fundamental odds with our republican system of government. I believe a judge should seek to uphold all acts of Congress and State legislatures, unless they clearly violate a specific section of the Constitution, and refrain from interpreting the law in a manner which creates new law. That is a fundamentally conservative position I have held throughout my career. I wish Justice Scalia shared that position.

Let us be very clear. At stake in the Citizens United case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are rescinded. Overturning Supreme Court precedent would open the floodgates to unlimited corporate and union spending during elections and undermine election laws across the country. Those able to spend tens of millions of dollars, such as a Fortune 500 company or a big labor union, are much more likely to be heard during an election than the average American voter is. For this reason, I have always advocated laws that would prevent big-moneyed special interests from drowning out the voices of individual American citizens in elections and dominating the decisionmaking process of our government.
Contrary to some of my critics, I am a firm believer in the first amendment.

For more than 100 years, laws have stood to limit corporate donations to political candidates and campaigns--for more than 100 years. The concern about corporate involvement in campaigns is not new in America. On September 3, 1897, in a speech on government and citizenship, Elihu Root, who would go on to become Theodore Roosevelt's Secretary of State and a Nobel Peace Prize winner, said:

The idea ..... is to prevent the great moneyed corporations of the country from furnishing the money with which to elect members of the legislature ..... in order that those members of the legislature may vote to protect the corporations. It is to prevent the great railroad companies, the great insurance companies, the great telephone companies, the great aggregations of wealth, from using their corporate funds, directly or indirectly, to send members of the legislature to these halls, in order to vote for their protection and the advancement of their interests as against those of the public.

It strikes, Mr. Chairman, at a constantly growing evil in our political affairs, which has, in my judgment, done more to shake the confidence of the plain people of small means in our political institutions, than any other practice which has ever obtained since the foundation of our government.

Remember, this was in 1897. He went on to say:

And I believe that the time has come when something ought to be done to put a check upon the giving of $50,000 or $100,000 by a great corporation toward political purposes, upon the understanding that a debt is created from a political party to it; a debt to be recognized and repaid with the votes of representatives in the legislature and in Congress, or by the action of administrative or executive officers who have been elected in a measure through the use of the money so contributed.

Additionally, one can make the case that the concern about corporate influence extends as far back as our Founding Fathers. In 1816, Thomas Jefferson wrote:

I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country.

Kentucky was the first State to ban corporations from spending their funds in State elections in 1891, and by 1897 Florida, Missouri, Nebraska, and Tennessee had all enacted similar corporate spending prohibitions in their State elections. While some States began enacting limits on the influence of money on politics during the Civil War era, Congress did not begin to pass major campaign finance regulations until some decades later. By that time, political contributions by major corporate interests and business leaders dominated campaign fundraising, and this development sparked the first major movement for national reform.

Progressive reformers, such as President Theodore Roosevelt and investigative journalists, charged that these business interests were attempting to gain special access and favors; thereby, corrupting the democratic process. This reform movement, combined with allegations of financial impropriety in the 1904 Presidential election, resulted in the enactment of significant reforms.

On October 1, 1904, Joseph Pulitzer published an editorial in the New York World questioning President Roosevelt's ties to many of the large corporations that had donated to his campaign. Those questions led Roosevelt's opponent, Judge Alton Parker, to describe the donations as blackmail and insinuated there was a quid pro quo involved. President Roosevelt responded angrily, calling the accusations monstrous and said:

The assertion that there has been any blackmail, direct or indirect ..... is a falsehood. The assertion that there has been made any pledge or promise or that there has been any understanding as to future immunities or benefits, in recognition from any source is a wicked falsehood.

President Roosevelt, not wanting to give the appearance of improper influence, directed his staff to return a $100,000 contribution from the Standard Oil Corporation. In his memo he wrote:

We cannot under any circumstances afford to take a contribution which can be even improperly construed as putting us under an improper obligation.

The allegations of impropriety also led Roosevelt to call for an end to corporate donations to campaigns. In his fifth annual message to the Congress on December 5, 1905, Roosevelt said:

The power of the Government to protect the integrity of the elections of its own officials is inherent and has been recognized and affirmed by repeated declarations of the Supreme Court. There is no enemy of free government more dangerous and none so insidious as the corruption of the electorate.

He warned:

If [legislators] are extorted by any kind of pressure or promise, express or implied, direct or indirect, in the way of favor or immunity, then the giving or receiving becomes not only improper but criminal. All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in the corrupt practices acts. Not only should both the national and the several State legislatures forbid any officer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation.

Again, the following year, in his sixth annual message to Congress in December 1906, President Roosevelt tried to limit corporate influence, stating:

I again recommend a law prohibiting all corporations from contributing to the campaign expenses of any party. Such a bill has already passed one House of Congress. Let individuals contribute as they desire .....

I repeat what he said:

Let individuals contribute as they desire; but let us prohibit in effective fashion all corporations from making contributions for any political purpose, directly or indirectly.

In January 1907, Theodore Roosevelt signed into law the Tillman Act. This law prohibited nationally chartered banks and corporations from contributing to campaigns. In the report to accompany the Senate version of the legislation, dated April 27, 1906, the Senate Committee on Privileges and Elections wrote:

The evils of the use of money in connection with political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose of this measure. It is in the interest of good government and calculated to promote purity in the selection of public officials.''

Following passage of the Tillman Act, Roosevelt again addressed the issue in his Seventh Annual Message to Congress in December, 1907. He said:

Under our form of government voting is not merely a right but a duty, and, moreover, a fundamental and necessary duty if a man is to be a good citizen. It is well to provide that corporations shall not contribute to Presidential or National campaigns, and furthermore to provide for the publication of both contributions and expenditures.

Although the Tillman Act constituted a landmark in Federal law, according to campaign finance expert Anthony Corrado, ``its adoption did not quell the cries for reform. Eliminating corporate influence was only one of the ideas being advanced at this time to clean up political finance.'' In the years following the passage of the Tillman Act, reducing the influence of wealthy individuals and labor unions became a concern and reformers pushed for further limits on donations.

Consequently, in 1947, Congress enacted the Taft-Hartley Act, which explicitly banned corporate and labor union expenditures in Federal campaigns. In doing so, Senator Robert Taft made clear that the purpose of the new language was simply to affirm what had been understood to always be the case--that the 1907 corporate ban had prohibited corporate expenditures, or indirect contributions, as well as direct corporate contributions.

A ban on corporate expenditures in campaigns has been consistently upheld by the Supreme Court as constitutional and as ``firmly embedded in our law.''

The constitutionality of the ban on corporate campaign expenditures was upheld by the Supreme Court in the Austin v. Michigan Chamber of Commerce decision in 1990 and reaffirmed by the Court in the McConnell v. Federal Election Commission decision in 2003. And the corporate expenditure ban had been commented on favorably by the Court in earlier cases.

In 1990, in the Austin case, the Supreme Court acknowledged the importance of maintaining the integrity of the political process. From the Court's opinion:

Michigan identified as a serious danger the significant possibility that corporate political expenditures will undermine the integrity of the political process, and it has implemented a narrowly tailored solution to that problem. By requiring corporations to make all independent political expenditures
through a separate fund made up of money solicited expressly for political purposes, the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries amassed with the aid of favorable state laws will be used to influence unfairly the outcome of elections.

In the McConnell case, the Supreme Court recognized its long-standing support for the constitutionality of bans on corporate campaign expenditures going back to its Buckley decision in 1976. From the Court's decision:

Since our decision in Buckley, Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law.

Additionally, in 1982, in the National Right to Work Committee case, the Supreme Court, in an opinion authored by Chief Justice William Rhenquist, stated regarding the Federal ban on corporate and labor union expenditures:

The careful legislative adjustment of the federal electoral laws, in a cautious advance, step by step, to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference. [I]t also reflects a permissible assessment of the dangers posed by those entities to the electoral process.

In order to prevent both actual and apparent corruption, Congress aimed a part of its regulatory scheme at corporations. The statute reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. Nor will we second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared. As we said in California Medical Association v. FEC, the ``differing structures and purposes; of different entities `may require different forms of regulation in order to protect the integrity of the electoral process .....' ''

The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized, First National Bank of Boston v. Bellotti, supra, and there is no reason why it may not in this case be accomplished by treating unions, corporations and similar organizations different from individuals.

In 1986, in the Massachusetts Citizens for Life case, the Supreme Court stated regarding the Federal ban on corporate expenditures in campaigns:

This concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas ..... Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace ..... The resources in the treasury of a business corporation ..... are not an indication of popular support for the corporation's political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.

By requiring that corporate independent expenditures be financed through a political committee expressly established to engage in campaign spending, section 441b seeks to prevent this threat to the political marketplace. The resources available to this fund, as opposed to the corporate treasury, in fact reflect popular support for the political positions of the committee.

If anyone has doubts about the influence of big-moneyed special interests on policy makers in this town, let me relay a personal observation. During the Senate Commerce Committee's consideration of the 1996 Telecommunications Act, every company affected by the legislation had purchased a seat at the table with soft money. Consequently, the bill attempted to protect them all, a goal that is obviously incompatible with competition. Consumers, who only give us their votes, had no seat at the table, and the lower prices that competition produces never materialized. Cable rates went up. Phone rates went up. And huge broadcasting giants received billions of dollars in digital spectrum, property that belonged to the American people, for free. They got it for free, billions of dollars worth of spectrum.

Information gathered from various sources in the press at the time indicated that the special interest groups involved spent nearly $150 million to lobby Congress on telecommunications reform--and they all came out on top--at the expense of the American consumer.

Similarly, the pharmaceutical industry has spent millions of dollars to sway lawmakers against the idea of drug importation. In the 2008 election cycle, pharmaceutical companies gave almost $30 million in campaign contributions to Members of Congress. Just this year, according to an article published in the June 3 edition of The Hill, the prescription drug industry has given more than one million dollars to both Republicans and Democrats. And these contributions were from the limited funds of corporate PACs--a fraction of the flood of money that could be spent out of corporate treasuries if the Supreme Court changes the law by judicial fiat.

As my colleagues know, for many years my colleague from Wisconsin, Senator FEINGOLD and I fought to ban soft money--the large, unregulated donations from corporations, labor unions, and wealthy individuals--from Federal elections. As the sponsors of the Bipartisan Campaign Finance Reform Act, we submitted, together with our colleagues from the House, Representatives Shays and Meehan, a brief for the court. In this brief we stated:

More fundamentally, Austin and McConnell were correctly decided. Unlimited expenditures supporting or opposing candidates may create at least the appearance of corruption, as Caperton v. A.T. Massey Coal Co. illustrates. The tremendous resources business corporations and unions can bring to bear on elections, and the greater magnitude of the resulting apparent corruption, amply justify treating corporate and union expenditures differently from those by individuals and ideological nonprofit groups.

So, too, does the countervailing free-speech interest of the many shareholders who may not wish to support corporate electioneering but have no effective means of controlling what corporations do with what is ultimately the shareholders' money. Austin was rightly concerned with the corruption of the system that will result if campaign discourse becomes dominated not by individual citizens--whose right it is to select their political representatives--but by corporate and union war-chests amassed as a result of the special benefits the government confers on these artificial ``persons.'' That concern remains a compelling justification for restrictions on using corporate treasury funds for electoral advocacy--constraints that ban no speech but only require that it be funded by individuals who have chosen to do so.

The holdings of Austin and McConnell--that it is constitutional to require business corporations to use segregated funds contributed by shareholders, officers and employees for express candidate advocacy or its functional equivalent--remain sound today. The interests in preventing actual or apparent corruption of the electoral process and protecting shareholders provide compelling justification for such requirements, which neither unduly burden nor overbroadly inhibit protected speech.

The corporate PAC option, moreover, is ideally suited to balancing the First Amendment interests of corporate entities and their shareholders. It allows the corporation to direct political spending only to the extent shareholders have personally decided to contribute for that specific purpose. It thus ensures that the corporation may have a voice, but one that is not subsidized unwillingly by those who may disagree with its electoral message. And there is no basis in the record for concluding that PACs are inadequate or unduly burdensome for business corporations, whatever may be true of certain ideological nonprofit corporations. Indeed, PAC requirements pale in comparison with the detailed recordkeeping and accounting otherwise required of corporations and unions.

The ability of corporate campaign expenditures to buy influence with Federal officeholders, and to create the appearance of such influence-buying is sadly evident in nearly every aspect of the legislative process. This fact was recognized in the McConnell case.

The brief filed in the McConnell case by me and my colleagues stated:

Not surprisingly, the McConnell record provided strong corroboration that corporate and union expenditures on ads that were the functional equivalent of express advocacy created the appearance of corruption. Based on that record, Judge Kollar-Kotelly found that such expenditures ``permit corporations and labor unions to inject immense aggregations of wealth into the process'' and ``radically distort the electoral landscape.'' She further found that candidates are ``acutely aware of'' and ``appreciate'' such expenditures, and ``feel indebted to those who spend money to help get them elected.'' She concluded that ``the record demonstrates that candidates and parties appreciate and encourage corporations and labor unions to deploy their large aggregations of wealth into the political process,'' and that ``the record presents an appearance of corruption stemming from the dependence of officeholders and parties on advertisements run by these outside groups.''

According to the Solicitor General's brief, the record in the McConnell case showed that:

Federal officeholders and candidates were aware of and felt indebted to corporations and unions that financed electioneering advertisements on their behalf or against their opponents.

The brief further stated:

[T]he record compiled in the McConnell case indicated that corporate spending on candidate-related speech, even if conducted independent of candidates, had come to be used as a means of currying favor with and attempting to influence Federal office-holders.

It is important for us to remember that this case does not affect solely the integrity of Federal elections. The States also have a great deal at stake in this case. In a brief filed in the Citizens United case, 26 State attorneys general wrote that ``Courts have repeatedly upheld these State and Federal corporate electioneering restrictions from their inception.''

In their brief, the attorneys general wrote:

This case does not concern the traditional regulation of corporate spending by State Laws. Instead it presents the application of a recent Federal statute to a novel form of political campaigning through the medium of video-on-demand and the message of a ninety-minute film. These and other political campaign innovations present an occasion to draw on State law experiments, not end them. The court cannot reach the validity of these laws under Austin without departing from its conventional approach to constitutional avoidance and as-applied review of campaign finance statutes, and ignoring its cautions against facial challenges in election law generally.

Austin follows a century of campaign finance law at the State and Federal level honed by six decades of this Court's holdings. Those decisions, and the State and Federal laws that gave rise to and rely on them, delineate a workable segregated-fund requirement for corporate electioneering that is embedded in campaign laws and practice at the Federal and State level. While imposing minimal burdens on corporations, the segregated fund protects the integrity of the political process from the corrupting influence of corporate executives funding political campaigns that have no proven support from the shareholders or customers whose money pays for the advocacy. The flourishing of corporate speech through PACs, and continued harms of direct corporate electioneering, has vindicated rather than undermined Austin's approval of segregated funds.

It is clear that the Austin and McConnell cases were correctly decided on the merits and those decisions remain sound today. According to the brief filed by the U.S. Solicitor General:

The Court in Austin held that corporations may constitutionally be prohibited from financing electoral advocacy with funds derived from business activities. That holding was correct when issued and should not be overturned now. Use of corporate treasury funds for electoral advocacy is inherently likely to corrode the political system both by actually corrupting political officeholders and by creating the appearance of corruption. Moreover, such use of corporate funds diverts shareholders' money to the support of candidates who the shareholders may oppose.

Congress's interest in preventing these pernicious consequences is compelling, and Congress has chosen a valid message of achieving it, requiring a corporation to fund its electoral advocacy through the voluntary contributions of officers and shareholders who agree with its political statements.

The Solicitor General's brief further stated:

Corporate participation in candidate elections creates a substantial risk of corruption or the appearance thereof. Corporations can use electoral spending to curry favor with particular candidates and thus to acquire undue influence over the candidates' behavior once in office.

The record in McConnell, which is by far the most extensive body of evidence ever compiled on these issues, indicates that during the period leading up to BCRA's enactment, Federal office-holders and candidates were aware of and felt indebted to corporations and unions that financed electioneering advertisements on their behalf or against their opponents.

The nature of business corporations makes corporate political activity inherently more likely than individual advocacy to cause quid pro quo corruption or the appearance of such corruption. Even minor modifications in complex legislation have great potential to benefit or burden particular companies, industries, or sectors. The economic stake of corporations in the nuances of such matters as industry-specific tax credits, subsidies, or tariffs generally dwarfs that of any set of individuals.

And when those benefits can be obtained through a game of ``pay to play,'' corporations are better suited than individuals to afford the ante. Corporate managers need not assemble a coalition of the like-minded; they can draw on the firm's entire capitalization without seeking the approval of shareholders. If only businesses can afford the investment necessary to pursue rents in this way, only businesses can reap the (even larger) reward. And the public perception that businesses reap such rewards from legislators whom they support in campaigns creates an appearance of corruption that corrodes popular confidence in our democracy.

At the heart of the Citizens United case is a critical question: Do the cherished individual rights protected by the Constitution extend in the same manner to corporations? Corporations, after all, are artificial creations of law, provided for by acts of Congress and the State legislaturs, and endowed under these laws with perpetual existence, special tax status, and other privileges, all for the sole purpose of economic gain. The resolution of this question in the affirmative will have wide-ranging and unpredictable results for our legal system.

For example, if the Court determines corporations have first amendment rights, it will be logical that corporations also have fifth amendment rights against self-incrimination. Is a corporation ``endowed by its creator with inalienable rights''? Just last year the Court found that the second amendment right to bear arms is a personal right. If the Court were to determine that corporations had the same rights as persons, would corporations have the right to arm themselves? Would lobbies of Fortune 500 companies contain grand weapon caches? The absurdity of the argument should be apparent to the members of the Court.

John Marshall, former Chief Justice of the Supreme Court, wrote in 1819 that corporations were ``an artificial being, invisible, intangible.'' Therefore, he stated, ``Being the more creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.''

Essential to a corporation's existence is a first amendment right to speak about their products and services. Essential to a corporation's existence is the right to sue for the theft of its intellectual property. Essential to a corporation's existence is the right to enter into contracts. Not essential to a corporation's existence is the ability to contribute unlimited funds to political candidates.

It is for this reason and others that the Supreme Court has repeatedly and consistently upheld a ban on direct contributions to political candidates by corporations and unions. Chief Justice Roberts stated at one point during the argument in the Citizens United case that: ``We do not put our First Amendment rights in the hands of FEC bureaucrats.'' I agree. And that is why the Court has repeatedly upheld bans passed by the Congress of the United States and by the State legislators on unlimited corporate or union spending in elections.

Under current law, corporations are free to give to political candidates through political action committees. In an editorial in the Boston Globe entitled ``Corporations Aren't People Yet,'' the editorial board rightly states: ``Even under current financial restrictions, health care industry groups are pouring millions of dollars into Congressional campaigns in the hope of thwarting reforms that might constrain their members.''

A September 10, 2009 editorial in the Philadelphia Inquirer stated:

Allowing corporations to flood elections with their aggregate corporate wealth would place a heavy thumb on the scales of democracy. If a certain industry did not like the way a Senator voted on environmental regulations, for example, there would be nothing to stop that industry from dumping $200 million into the campaign of that Senator's opponent.

The editorial goes on to say:

If the high court rules now that corporations have the same political speech rights as individuals, average citizens will have that much more trouble being heard ..... the distinction between corporate speech and individual speech is clear enough, and the importance of limiting the undue influence of money and politics is significant enough that the court, in all its wisdom, should leave well enough alone.

I agree.

In conclusion, the Court should not overturn precedent and Congress's clear intent to limit corporate contributions to political candidates. In summary, there are three simple points raised by the Court's consideration of the Citizens United case. First, whatever one thinks of a first amendment right for corporations, it is not appropriate for a nondemocratic branch of government to raise a question of the broadest scope at the last minute when such a question was not raised in the trial court and there is no ability to build a record.

Congress is the most democratically elected branch of government and should be able to make laws that do not stand in the face of the Constitution whether or not the members of the Court would themselves support such legislation if they served in the elected branches of government.

Secondly, the principle enshrined in law for many years was that corporations, because of their artificial legal nature and special privileges, including perpetual existence, pose a unique threat to our democracy. However, the current court seems poised to find that Thomas Jefferson, Theodore Roosevelt, and others were wrong despite there being no record built on this point in this case. In McConnell, there was a record built to support the decision. Here, the trial court never examined the idea of corporations having broad first amendment rights. The Court is reaching to find such a conclusion as part of the Citizens United case.

Lastly, I stress again to my colleagues the implications of the decision the Court may reach in this case. The Court is considering a question that may lead to corporations being treated as ``persons'' under the Constitution, would allow corporations to assert a fifth amendment right to refuse to testify under oath and to keep documents from lawful investigations, and would allow corporations to be subject to individual tax brackets.

Are my colleagues prepared to provide such rights to corporations? Are my colleagues prepared to pass legislation that taxes corporations and persons at the same rate? If the Court provides full first amendment rights to corporations, there is no reason that corporations could not receive the benefits as well as the responsibilities of being a person.

Justice Sandra Day O'Connor wrote in the McConnell decision, and I think with such accuracy, that ``money, like water, will always find an outlet,'' and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits. Again, Justice O'Connor knew better than most jurists, as a former Arizona State Senator, and majority leader of the Arizona State Senate. I hope and wish that the current Court heeds the words of this brilliant jurist who had real-life experiences in politics.

Needless to say, I am very concerned about the integrity of our elections should the Supreme Court rule to overturn the Austin decision. I sincerely hope that the Justices will practice restraint and rule in a manner consistent with judicial precedent and the Constitution of the United States of America.

I again want to, as I have on many occasions, thank my friend from Wisconsin, a man of courage and a man of integrity, and a man I have always been proud to be associated with on issues such as these that are important to the integrity of the institution that we both try to serve with honor.

I yield the floor.

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