Statements On Introduced Bills And Joint Resolutions

Floor Speech

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By Mr. DODD (for himself and Mr. UDALL, of New Mexico):

S.J. Res. 28. A joint resolution proposing an amendment to the Constitution of the United States relating to contributions and expenditures intended to affect elections; to the Committee on the Judiciary.

Mr. DODD. Mr. President, I rise to discuss a constitutional amendment I am introducing today, along with my colleague Senator Tom Udall, in the wake of the U.S. Supreme Court's recent Citizens United v. Federal Election Commission decision. This proposed amendment would simply authorize Congress to regulate the raising and spending of money for Federal political campaigns--including independent expenditures--and allow States to regulate such spending at their level. It would also provide for implementation and enforcement of the amendment through appropriate legislation. I invite my colleagues on both sides of the aisle to join us by cosponsoring the amendment.

Let me begin by noting that I am a firm believer in the sanctity of the First Amendment. I believe we must continue to do all we can to protect the free speech rights of all Americans. I do not suggest changing the language of the First Amendment, which I revere. But I do not believe that money is speech, nor do I believe that corporations should be treated exactly the same as individual Americans when it comes to protected, fundamental speech rights. That is what the Supreme Court has effectively now held.

I recognize that amending the Constitution is a long-term undertaking, and that this effort will not likely bear fruit during my remaining time in this body. Reinhold Niebuhr said that nothing worth doing is completed in our lifetime; I would add much less during a Senate term.' I hope that in the wake of this court decision we can begin that comprehensive reform effort; I know that it would be worth doing. The Constitution itself establishes a long and complex process for its own amendment, including approval by Congress and the States, and I am proposing to use that process to save our democratic system of government, and ultimately our republic, from the continued corrosion of special interest influence.

I am introducing the amendment because I believe that constitutional
questions deserve constitutional answers. While I intend to support interim legislative steps to address urgently those issues that can be addressed in the wake of this decision, including increased disclosure requirements, further limitations to prevent foreign corporations' influence on our elections, and other measures, I think the scope of such efforts is limited by the court's sweeping, even radical conclusions in this case.

Make no mistake, as much of the commentary surrounding it suggests, the Citizens United case is one of the most radical decisions in the court's long history of campaign finance reform jurisprudence. It overturns 100 years of precedents to come to the unjustified conclusion that corporations deserve the same free speech protections as individual Americans. It opens the door to corporations spending vast amounts of money directly from their treasuries to influence Federal elections, and thereby influence Federal officeholders and policy decisions, in ways much more direct and concentrated than is the case now through corporate and union political action committees. If you are concerned now about the undue special interest influence of big banks, energy companies, health insurance firms, pharmaceutical firms and other special interests on our political process, just wait until these entities can spend millions of dollars directly to elect or defeat officeholders. If you are concerned about the special interest-generated paralysis of our legislative process, wait until you see the results of this decision. As one distinguished Republican election lawyer who opposes the decision recently said, it will be the ``wild, wild west.''

Perhaps most radical is the court's conclusion that corporations are legal ``persons'' seemingly deserving of the exact same free speech protections as all Americans. This decision notwithstanding, corporations are not people. A first-year law student will note that corporations are basically a legal fiction, entities created with certain limited legal rights designed to enable them to operate in the business world: to enter into and enforce contracts, to conduct transactions, and the like. They can't vote or think or speak or run for office. They only make political and policy decisions through their officers and shareholders, informed by their lobbyists and others. They should not enjoy the same fundamental free speech protections that individual Americans enjoy in our political discourse, or the ability to spend unlimited funds directly from large corporate treasuries for that purpose. As others have observed, the framers could not have imagined, and would not have wanted, a system in which corporations could pour literally billions of dollars into elections and thereby exercise grossly outsized influence over the fate of our elected representatives. Such a system does not promote free speech; it mocks it.

I have worked for decades to reform our campaign finance laws, with colleagues and former colleagues like Senators Boren, Mitchell, BYRD, Daschle, FEINGOLD, KERRY, MCCAIN, Dole, COCHRAN, and others. Time and again we have developed comprehensive bipartisan efforts, only to have them frustrated by a small minority of Senators, or in one case by a veto exercised by the first President Bush. I have served my party as head of the Democratic National Committee, and so I have seen the problems of our current campaign finance system from a variety of perspectives.

In previous debates I have rehearsed the problems with our current system. They include the exponentially increasing costs of campaigns. The endless time we must spend to travel and make calls to raise money, which is then spent mostly on expensive and increasingly negative TV ads in our states. The ways in which special interests buy access and influence, and how such influence erodes the trust and confidence of Americans in our democracy. These problems are systemic, pervasive and fundamental. They require comprehensive, fundamental reforms. A constitutional amendment would create the conditions for the possibility of real statutory reform that could then be adjusted as we go along, to address new abuses and problems as they arise.

I attended the Supreme Court's oral arguments in this case, and I heard in the pointed questions of the Justices who composed this 5-4 majority the portents of this radical decision. But even then I did not anticipate fully how breathtakingly far the court would reach.

That extended reach was not only unwise and unjustified, it was also unnecessary. This court majority, whose members have so forcefully decried judicial activism, might have taken a less radical approach, and resolved the legal issue before them without drawing such sweeping conclusions. Instead, they chose to ride roughshod over decades of the court's own legal precedents and the principle of stare decisis. That is why I believe it is fair to say, as Justice Stevens did in his stinging dissent in this case, that this case was brought by the Justices themselves. I urge my colleagues to read Justice Stevens' detailed, powerful and carefully reasoned dissent. In it, among other things, he observes that the only thing that has really changed since the Supreme Court made its rulings in the Austin, 1990, and McConnell, 2003, decisions, upholding the corporate campaign spending ban, is the composition of the Supreme Court. Instead of deciding the case based on the narrow issues before them, in a raw display of activist judicial power the majority in this sharply divided court took the rare step of asking for the case to be broadened and re-argued, and then issued this sweeping decision.

With this decision, I believe the court has seriously jeopardized its own integrity, already damaged by its hugely controversial decision in Bush v. Gore, and done enormous harm to our democracy--harm which will only become clearer to Americans in the next few years as close Congressional and state races are decided by the spending of corporate interests.

The public reaction to this court decision has been swift and strong, I think because Americans intuitively recognize that it represents an enormous transfer of power away from citizens to wealthy corporations. I saw a poll recently which showed broad opposition to the decision among all Americans--Democrats, Republicans and Independents alike. The poll showed that it was opposed by 66 percent of Democrats, 63 percent of Republicans, and 72 percent of Independents. Americans intuitively recognize the dangers of a decision to allow corporations to spend unlimited funds against candidates. They see this decision's potential to worsen the problem of special interest influence, and to further erode trust and confidence in that process. Though this hasn't been commented on too broadly in the media reports following this decision, I also believe Americans recognize that the next logical step the Supreme Court could take in the wake of this decision is to go beyond this decision which overturns the ban on corporate independent expenditures in campaigns to allow direct corporate contributions to candidates.

This constitutional amendment is a version of one passionately championed for years by Senator Hollings, and updated by Senator Schumer in the last Congress. I have decided to reintroduce it at this point in our debate to emphasize that even though I support efforts to do what we can in the interim to reform our campaign finance laws, ultimately we must cut through the underbrush and go directly to the heart of the problem: the Supreme Court's decision in Buckley vs. Valeo and other subsequent decisions which conflate money with speech, and this most recent decision in Citizens United which lifts the long-time ban on direct corporate spending in campaigns.

In these decisions, the Supreme Court has basically made it impossible for Americans to have what they have repeatedly said they want: reasonable regulations of campaign contributions and expenditures which do not either directly or indirectly limit the ideas that may be expressed in the public realm. I submit that such regulations would actually broaden the public debate on a number of issues by freeing it from the narrow confines dictated by special interest money. With its decisions, the Supreme Court has effectively neutered comprehensive efforts to control the ever-spiraling money chase, and has forced legislation intended to control the cancerous effects of money in politics to be more complicated and convoluted than necessary. The complications we are forced to resort to, in turn, create new opportunities for abuse.

Even without a constitutional amendment, we can try to make some progress. For example, I think we made some decent progress on the McCain-Feingold legislation, even despite the Court's decisions since 2002 narrowing the reach of that law. But we cannot enact truly comprehensive legislation that will get to the heart of the problem under current court rulings. I wish we could. I have long supported a clean elections system of public financing for Congressional campaigns which would integrate spending limits, citizen financing, and other basic reforms. That is the way I think we should go. There are other approaches. But the fact is--and I am sorry for this--that unless the Supreme Court again reverses itself, we cannot get the comprehensive legislation we really need unless we first adopt an amendment to the Constitution.

This amendment is neutral on what kind of regulation of campaigns would be allowed. It simply authorizes such regulation, and leaves it to Congress and state legislatures to determine what might be appropriate. That is where such decisions should be made on these issues: by the people's representatives in Congress and in state legislatures. That is why I think amending the Constitution and enabling Congress to make those decisions is the first step if we are to make real progress on this front.

Others will argue for a narrower constitutional amendment to focus primarily on the issue of corporate expenditures. That is another way to address the issue, though I believe it would still leave many unanswered questions about Congress' ability to regulate broadly in this area. We should have a full and robust debate about all of the options.

Someday we may adopt this idea, if the situation continues to run out of hand. And we may look back to this court decision in 2010 and mark it as an historic watershed, a catalyst for major change. I sincerely hope that will be true, for the sake of this institution and our democratic process, and for the sake of our country. I commend the amendment to my colleagues' attention, and urge them to consider cosponsoring it.

Mr. President, I ask unanimous consent that the text of the joint resolution be printed in the Record.

There being no objection, the text of the joint resolution was ordered to be printed in the RECORD

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