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Mr. WHITEHOUSE. Mr. President, I rise today to speak about a subject that I know is dear to the heart of the Presiding Officer, which is the sorry state of our campaign finance system and the need for the DISCLOSE Act of 2012, which we call DISCLOSE 2.0.
The Supreme Court's 2010 decision in Citizens United v. Federal Election Commission opened the floodgates to unlimited corporate and special-interest money in our elections, bringing about an era in which corporations and other wealthy interests can drown out the voices of individual voters in our political system. Worse still, much of this spending is anonymous, so we don't even know who is spending millions to influence our elections.
Here is how my State's newspaper, the Providence Journal, explained it when the ruling came down:
The ruling will mean that, more than ever, big-spending economic interests will determine who gets elected. More money will especially pour into relentless attack campaigns. Free speech for most individuals will suffer because their voices will count for even less than they do now. They will simply be drowned out by the big money.
The Providence Journal had a lot of foresight with that warning. What has happened since then has proven them right. Senator John McCain recently said this:
I predicted when the United States Supreme Court, with their absolute ignorance of what happens in politics, struck down the law--
Referring to the McCain-Feingold campaign finance law
--That there would be a flood of money into campaigns, not transparent, unaccounted for, and this is exactly what is happening.
Senator McCain, is it ever. In the 2010 midterm election, the first after Citizens United, there was more than a fourfold increase in expenditures from super PACs and other outside groups compared to 2006, with nearly three-quarters of political advertising coming from sources that were prohibited from spending money in 2006. Also in 2010, 501(c)(4) and (c)(6) not-for-profit organizations spent more than $135 million in unlimited and secret contributions. This anonymous secret spending rose from 1 percent of outside spending in 2006 to 44 percent in 2010.
We are already seeing the influence of money on the 2012 elections. Super PACs and other outside groups have spent around $140 million in this election cycle. That is about twice what was spent over the same period in 2008 during the last Presidential election.
In the 2 weeks leading up to Super Tuesday, outside PACs that supported the Republican Presidential candidates spent three times as much on advertising as the campaigns did themselves.
There are already signs things are going to get even worse. The Washington Post reported:
Groups that do not reveal their funding sources have spent $28.5 million on advertising related to the November presidential matchup, or about ninety percent of the total.
Ninety percent. And these are groups that don't reveal their funding sources.
Our campaign finance system is broken. Action is required to fix it. Americans of all political stripes are disgusted by the influence of unlimited, anonymous corporate cash in our elections, and disgusted by campaigns that succeed or fail depending on how many billionaires the candidates have in their pockets. More and more, people believe their government responds only to wealthy and corporate interests.
As they see their jobs disappear and their wages stagnate and bailouts and special deals for the big guys, they lose ever more faith their elected officials are actually listening to them. Over the deafening roar of secret special interest spending, they get harder and harder to listen to.
This growing consensus across the political spectrum was reflected in the brief Senator John McCain and I filed with the Supreme Court last week in American Tradition Partnership v. Bullock. In that brief, we urged the Court to reconsider the flawed central premise of its decision in Citizens United: the proposition that independent expenditures do not lead to corruption or the appearance of corruption.
As the statistics about anonymous spending and public perception make clear, this premise is discredited. I am proud to have worked on the brief with Senator McCain, who has long been a leader in Congress on campaign finance issues. I hope our partnership will mark the beginning of greater cooperation across party lines on this issue of vital importance to the integrity of our great American democracy. I also hope the Supreme Court will take heed of the nearly universal opinion that the system they have unleashed in Citizens United puts our very democracy in jeopardy.
Until the Court acts, or until we enact a constitutional amendment to repair what they have done, we are left with one weapon in the fight against the overwhelming tidal wave of money from special interests--and that is disclosure. At least make them fess up to who they are.
That is why I stand here today in support of the DISCLOSE Act of 2012 or, as I said, DISCLOSE 2.0, in recognition of Senator Schumer's great work on the DISCLOSE Act. This legislation will shine a bright light on these powerful interests and their spending. With this legislation, which now has 43 cosponsors in the Senate, every citizen will know who is spending these great sums of money to get their candidates elected and to influence those candidates.
I would like to give particular thanks to the previous Presiding Officer, Senator Franken, and the current Presiding Officer, Senator Tom Udall, as well as Senators Chuck Schumer, Michael Bennet, Jeff Merkley, and Jeanne Shaheen for their hard work on developing this legislation. Senator Schumer, as we all know, has been leading the charge for disclosure since Citizens United upended and fouled our campaign finance system.
In 2010, with Senator Schumer's leadership, we came within one vote of passing the original DISCLOSE Act. Since then, the problem of anonymous, unaccountable special interest money has become much worse. We must redouble our efforts and pass DISCLOSE 2.0.
DISCLOSE 2.0 says two very simple things: First, if you are an organization, such as a corporation, a super PAC, or a 501(c)(4), and you are spending money in an election campaign in support of or in opposition to a candidate, you have to tell the public where that money came from and what you are spending it on in a timely manner.
That should not be a controversial idea to anyone, at least to anyone who is not seeking secret special influence. This chart shows how easy it is under our current system for wealthy interests to anonymously spend millions on election ads. This amounts to a form of legalized money laundering or identity laundering. Super PACs are supposed to disclose their donors under current law. But if someone wants to avoid that disclosure, they can set up a shell corporation, which may be nothing more than a P.O. box, and send the money to the super PAC through that.
Worse still, instead of using a shell corporation, they can pass the money through to a 501(c)(4), a so-called ``social welfare'' organization set up just for the purpose of spending money in elections. Think about that. The IRS gives nonprofit status to groups whose primary purpose in many cases is to shield billionaires and corporations spending money in elections from having their identities disclosed. In many cases, these 501(c)(4) groups are so closely affiliated with their super PACs they have all the same staff and all the same office space, and the (c)(4) groups still don't have to disclose the identities of their donors.
On this chart we see the money raised through the end of 2011 by two political groups started after Citizens United by Republican political operatives. These two organizations have the same staff and the same office space, and they run negative ads against many of the same candidates. One, American Crossroads, is a super PAC and is supposed to disclose its donors. The other, Crossroads GPS, is a 501(c)(4) group and doesn't have to disclose donors. Guess which one has raised more money. Of course it is the 501(c)(4) group which doesn't have to disclose its donors. That group has raised $76.8 million as compared to only $46.4 million by its sister super PAC.
This is, by no means, a unique situation. For corporations trying to buy influence through spending in elections, ``nondisclosure is always preferred,'' as an unnamed corporate lobbyist recently told Politico. Why? Well, for one thing there is no accountability--not to the company shareholders, not to their customers, and not to the public. Nondisclosure is ``preferred'' because it makes it impossible for the public and for law enforcement to track the corrupting influence of the money these corporations spend in elections. DISCLOSE 2.0 would put an end to using 501(c)(4) groups and shell corporations to shield the identities of big campaign contributors.
One thing that shouldn't be lost in this discussion of anonymous spending is the fact there is one person to whom this spending is certainly not anonymous, and that is the candidate--the elected official. The donors manage to hide their identities from the public, but they can sure tell the candidate how much money they put into that candidate's super PAC and what positions they want the candidate to take on issues. What this creates is a perfect formula for corruption: wealthy corporations and individuals spending millions of dollars to influence a candidate without any oversight or public accountability or scrutiny.
Also, as a former Attorney General--and I know the Presiding Officer, the Senator from New Mexico, can appreciate this as well--a well-heeled donor doesn't have to make the contribution necessarily, doesn't have to launch the ad necessarily. They can also secretly threaten a massive expenditure against a candidate if the candidate doesn't vote right on their issue. Political scientist Norm Ornstein recently said:
I have had this tale told to me by a number of lawmakers. You're sitting in your office and a lobbyist comes in and says, ``I'm working with Americans for a Better America. And I can't tell you who's funding them, but I can tell you they really, really want this amendment in the bill.'' And who knows what they'll do? They have more money than God.
If the candidate complies and does the right thing by the amendment or the right thing by the bill, the expenditure is never made. There will be no paper trail; no trace of the threat that drove that vote--that corrupted that vote--was ever made.
The whole rationale for unlimited spending was that it was going to be done independently of the candidate's campaign. That has proven false. The reality is that super PACs are anything but independent. Campaigns and super PACs share fundraising lists, donors, former staff, and consultants. Candidates appear at fundraisers for their super PACs, and super PACs recycle ads originally run by the candidates. They are free to act as the ``evil twins'' of candidate campaigns, as one FEC Commissioner put it, raising unlimited, anonymous money and then spending it on massive amounts of advertising--most of it negative--which further hides the identity of the interest behind the ad because if all you are doing is trashing a candidate, you don't even have to show what your interest is, let alone your identity.
About 70 percent of ads in this election cycle have, as a result, been negative ads, up from only 9 percent in 2008. This brings us to the second thing DISCLOSE 2.0 does. If someone is a top executive or a major donor of an organization spending millions of dollars on campaign ads, they have to take responsibility for their ads, just the way we do as candidates. These are reasonable provisions that should have wide support from Democrats and Republicans alike. As Trevor Potter, a Republican former Chairman of the Federal Election Commission, said in a statement submitted to the Rules Committee of the Senate: [DISCLOSE 2.0 is] ..... appropriately targeted, narrowly tailored, clearly constitutional, and desperately needed.
We have made every effort to craft an effective and fair proposal while imposing the least possible burden on covered organizations. Passing this law would remove a dark cloud of unlimited, anonymous money from our elections, and it would prove to the American people that Congress is capable of fairness, equality, and following the fundamental principle of a government ``of the people, by the people, and for the people.''
I urge my colleagues to support the DISCLOSE Act of 2012.
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Mr. WHITEHOUSE. Mr. President, while we are waiting for the next speaker to arrive, I wanted to take a moment and discuss the brief Senator McCain and I filed in the Supreme Court last week. It can be found at http://www.whitehouse.senate.gov/download/?id=e3ba7f1b-d132 4aef-b5bc-c49fd711fc51.
The Supreme Court in the Citizens United decision was in a difficult situation. No member of the Court had ever run in an election for office. It may be the first time in the history of a country that no member of the Supreme Court had ever run for office, so it is a Supreme Court that as a corporate group was uniquely inexperienced in the actual ins and outs of elections and politics.
Moreover, the way the Citizens United case came up to the Court, the question they ended up deciding is one that they asked for additional briefing on. It is a question that, in many respects, the Court raised itself. And so the Court did not have the benefit of the usual process of a case beginning in the trial court and amassing a record of evidence, of testimony, of witnesses, of a review of all of that at the appellate court level, and then final review at the Supreme Court. So they did something very unusual. They actually made a finding of fact.
A finding of fact is not something Supreme Courts are supposed to do in the first instance. That is the job of the trial judge and the jury, if there is a jury trial. Those are the fact-finders in our system of law. And certainly for a Supreme Court that has an appellate tribunal between it and the trial branches, as our Federal system does, it is very unusual for them to be making findings of fact. They made findings of fact in this case. And, unfortunately, because they had no experience in elections, any of them, and because they had no record, they made a finding of fact that was not in fact a fact. They made a finding of a false fact.
The mistake they made was to determine that no amount of corporate spending in an election could create either the risk or the appearance of corruption, and I think the practical facts of that are pretty easy to rebut.
They stood that finding of fact, that premise, on two subordinate premises and we rebut both of them in the brief. If I have further time, I will come back to that, but I see that the Senator from New Hampshire is here and I do not want to cut into her time, so I yield to the distinguished Senator from New Hampshire, and I appreciate her great work through the long period of discussion and draftsmanship that brought 2.0 to the floor with its now 43 cosponsors.
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Mr. WHITEHOUSE. The great experiment that the Founders of this country embarked upon when they founded this country was to allow for a democratic form of government that was governed by the people--not kings, not lords, not pharaohs, by the people. It has been a consistent thread throughout our history at important times.
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Mr. WHITEHOUSE. I believe it is. We operate in a modern world in which we are bombarded by media. The average person, the average, ordinary member of ``the people,'' does not have much access to that media, cannot get his or her voice much heard in that bombardment. But if someone has enormous amounts of money, either because they are a corporation with a vast treasury or because they are a billionaire, they can take a big chunk of that media and can use it to broadcast their view. That will drown out other voices that do not have that power. So it really does attack the basic premise of ``we the people.''
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Mr. WHITEHOUSE. I think three things went wrong. First of all, this is a Supreme Court that, unlike most if not all other Supreme Courts, has no political experience. None of them have ever run for office, so they do not have a practical sense of how politics engages in an election.
Second, because they sort of invented this question, they did not have a record where people who did know about politics and did know about elections and did know about corruption could assemble a record from which they could then learn. So they were operating in a much greater vacuum than the Supreme Court usually does.
Finally, they made two presumptions that supported it. One was that the super PACs and all these big entities would be independent from the candidates. We have seen that was a false assumption. That was a wrong premise. Now the super PACs are connected to a candidate. They have one purpose: to get the candidate elected. They have funds raised by the candidate, they share staff with the candidate, they share consultants with the candidate. They use the same footage as the candidate. The idea that they are independent has been made preposterous by the facts.
The second was that there would be disclosure so the public could at least evaluate, OK, this is the coal mining industry coming after somebody who is fighting for climate change. We get that. We can make an appropriate judgment about that use of corporate money to attack a candidate. They were wrong about that as well. That is why we are here on this DISCLOSE 2.0, and we have been working so hard to make sure this bill has gotten to the floor in the good shape it has been.
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Mr. WHITEHOUSE. Absolutely dead wrong, as proven by reality. It is not just a theoretical wrongness, it is a factual, actual wrongness.
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Mr. WHITEHOUSE. Not only did they not wrestle with it, it is not clear they even thought about it. When there are people who have come out of the judicial monastery--not quite the right word because they are men and women alike--but out of the separate province of high-end adjudication, they are not familiar with this. They did not think of this. They didn't think of that, and the other thing they didn't think of was that the threat of launching a multimillion-dollar negative attack against a candidate could have a corrupting effect, even if no dollars were ever spent.
If the threat is successful, if the scheme works, there is no trail left to it. Before Citizens United, if someone wanted to make a threat, their threat was limited to a big PAC contribution, having a big fundraiser, things like that. It was not a real threat in the sense it could knock somebody out of their office.
Now the idea that a corporate identity can hide its identity, can launder its identity through 501(c)(4)s and then launch a multimillion-dollar attack in somebody's State is a credible threat, and I think that is a threat, among others, they overlooked completely.
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