Citizens United Anniversary

Floor Speech

Mr. WHITEHOUSE. Mr. President, representing a State that is coming up on our 350th anniversary, I am delighted to salute the great State of Michigan on its 175th anniversary.

I rise to note the anniversary of an unfortunate event that is undermining the very core of our cherished democracy. This past Saturday marked the 2-year anniversary of the Supreme Court's disastrous 5-to-4 decision in a case called Citizens United v. the Federal Election Commission. With that feat of judicial activism, the conservative block of the Supreme Court gnawed a hole in the dike protecting our elections integrity, overturned the will of Congress and the American people, and allowed unlimited, anonymous corporate money to flood into our elections.

Senator McCain recently called this ``one of the worst decisions in history.'' Senator Schumer said, at the time, ``One thing is clear; the conservative block of the Supreme Court has predetermined the outcome of the next election; the winners will be the corporations.''

It is no secret around here that big corporate interests long have had oversized influence in the legislative and executive branches. But Citizens United supersizes that influence so it threatens to overrun our elections. Here is how my home State newspaper, the Providence Journal, explained it:

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.

This election year already confirms those fears. Senator McCain noted earlier this month--and I will quote him again:

I predicted when the United States Supreme Court, with their absolute ignorance of what happens in politics, struck down [the McCain-Feingold finance] law, that there would be a flood of money into campaigns, not transparent, unaccounted for, and this is exactly what is happening ..... and I predict ..... that, in the future, there will be scandals because there is too much money washing around political campaigns now that nobody knows where it came from and nobody knows where it's going.

Senator McCain got it right. Look at Iowa, New Hampshire, and South Carolina. This election cycle has been the coming-out party for the super-PACs, the so-called ``evil twins'' of candidates' campaigns.

Why evil twins? Because unlike candidates' campaigns, super-PACs can accept unlimited corporate cash. Unlike candidates' campaigns, super-PACs can hide the identities of who is funding them until long after the voting is over. Unlike candidate's campaigns, super-PACs can run vicious and misleading advertisements without anyone being accountable to the voters.

Super-PACs supposedly cannot coordinate their activities with the candidates' campaigns, but we all know this is pure fiction. In practice, they are run by close confederates of the candidates, fueled by the same donors and acting in perfect harmony with the campaigns and it is out of control. Through the date of the New Hampshire primary, super-PACs spent over $14 million, far more than the candidates' campaigns did themselves. Here is the problem: Corporations are not people. By refusing to acknowledge this, the Citizens United opinion has undermined the integrity of our democracy, allowing unlimited corporate money to drown out ordinary citizens' voices.

This is not just some unfortunate side effect of a longstanding right enshrined in our Constitution. This is new and novel. The Founders certainly did not consider corporations to be citizens of our democracy. Corporations are not even mentioned in the Constitution

once. Indeed, private business corporations were actually rare at our Nation's founding.

As Justice Stevens noted in his dissent in Citizens United it is:

Implausible that the Framers believed `the freedom of speech' would extend equally to all corporate speakers, much less that it would preclude legislatures from taking limited measures to guard against corporate capture of elections.

So there is no case to support the Citizens United decision if one is an ``originalist.''

Federal laws have restricted corporate spending on campaigns since 1907. The principle that an inanimate business corporation is not allowed to spend unlimited dollars to influence political campaigns is a long-established cornerstone of our political system from Teddy Roosevelt, a century ago, to Senators MCCAIN and Feingold in our time, who won that bruising legislative battle for the 2002 bipartisan Campaign Reform Act. Citizens United overturned not just all that legislation but also overturned a long line of judicial decisions upholding those restrictions on corporate cash and elections. So there is no case based on precedent either.

Justice Stevens noted that ``the only relevant thing that has changed [since those prior precedents] ..... is the composition of this Court.''

The conservatives got a majority of five and they ran with it--judicial activism pure, plain, and simple. The activism appears pretty nakedly in the majority's finding of fact.

For starters, a Supreme Court is not supposed to make findings of fact. Its role is to review the factual record presented to it and interpret the law. But the Supreme Court's conservative bloc nevertheless made findings of fact in Citizens United. Here is one:

We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

They just declared that to be true. So a company comes in, drops a couple million dollars to smear one candidate on behalf of the other in a closely contested race, and you don't think that other candidate is in the company's pocket? Please.

Say a year later that company comes back and it sits down quietly with the Congressman and says: Remember that ad we ran smearing your opponent last year that helped you win the election? Well, here is one we are going to run against you through a different, phony shell organization unless you vote with us on this bill. No possibility of corruption or the appearance of corruption? Please. It is ludicrous. It is patently false.

Here is another finding of fact by this bloc of judges:

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

If all we are doing is listening to the corporations, people are going to be fine with that. Please. Anyone in politics knows how phony that statement is. There are hundreds of thousands of pages to the contrary in the records of the previous Supreme Court decisions that were overturned and from legislative hearings.

Here is what the Senate said 100 years ago, speaking about corporate money in elections:

The evils of the use of [this] 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.

This finding of the Senate was magically overturned by the Citizens United Five. Other courts are having trouble swallowing this phony factfinding.

The Montana Supreme Court recently rejected this false premise that underlies Citizens United. Here is what they said:

Clearly the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens.

Now, that is true. But the conservative justices comprising the Citizens United Five had to make these unsupported findings of fact. They are the analytical linchpin of the Citizens United decision. Without the pretense that corporate money could never corrupt or appear to corrupt elections, the rest of their analysis falls to pieces, and they would never have been able to open the floodgates for the big corporations.

So they had to make these findings, even though the findings were contrary to precedent, contrary to common sense, contrary to fact.

Americans of all political stripes are disgusted by the influence of unlimited, anonymous corporate cash in our elections. Rhode Islander Charles--I will just use his first name--in Little Compton wrote to me:

[i]t is wrong that someone who shouts louder or further, in this instance solely because they have more money, should drown out another person ..... [C]orporations have no problems getting their views aired.

Hope-Whitney in Bristol wrote to me:

[j]ust the idea that a corporation is considered an individual in regards to politics goes against everything American to me ..... [T]hey have become the Emperors as they have the financial ability to be heard everywhere ..... I'd be willing to bet that a majority of their own employees do not agree with their political representation.

Elizabeth in Wakefield, RI, wrote:

Big business should not control our elections. It is bad enough that they deeply influence our politicians through lobbyists.

Rhode Islanders, like Americans across the country, have had enough. In 2010, we came within one vote in this Chamber of passing the DISCLOSE Act, which would have at least kept the corporate cash from flooding our elections anonymously. This year, let's redouble our efforts to limit the damage done by Citizens United. We must if we are to preserve democracy of the people, by the people, and for the people from this tide of unlimited, unaccountable, and anonymous corporate money polluting the power of elections.

Thank you, Madam President. I yield the floor.

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