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Food and Drug Administration Reform Act

Floor Speech

Location: Washington, DC


Mr. WHITEHOUSE. Madam President, this is the week for the Supreme Court to release opinions from dozens of cases that it has been considering over the past term. In most of these important cases, the Court followed its usual practice of allowing the parties to file detailed legal briefs and to present oral arguments to make their side of the case before the Court reached its decision. In one case, however, it decided an issue vital to the ongoing function of our democracy, and it decided that case without even allowing the parties the opportunity to write legal briefs on the merits and to argue their case before the Court.

In the Montana case, American Tradition Partnership v. Bullock, the Court's five-man conservative bloc doubled down on a historic error they made 2 years ago in Citizens United. Citizens United, I am confident, will mark one of the lowest points in the Supreme Court's history.

The case will ultimately stand alongside Lochner v. New York and other such decisions in the Supreme Court gallery of horrible decisions.

A telltale of these horrible court decisions is that they create rights of the powerful against the powerless, turning the very concept of ``rights'' inside out. Ordinarily, a right is something that stands against power. That is why it is carved out as a right; it is because it offends against the power structure, and yet we value it and we defend it. And our courts have as their very purpose in our system of government the purpose to be the guardians of those rights, the guardians of those rights against whatever the structure of power is in our society. That is why we give judges long or lifetime tenure. That is why conflicts of interest in the judiciary are so particularly concerning. That is why some decisions we take away from officialdom entirely and give them to a jury of our peers. That is why it is a crime to tamper with a jury. We do all of those because we want courtrooms insulated from power so that courts can do the essential work of protecting rights against the predations of power.

Look at the Lochner decision, for instance, and see how that Court turned the whole question of rights inside out. Seeking to defend the prevailing economic power structure, the Supreme Court held that bakers had a constitutional right--under a theory of freedom to contract--to agree to work whatever hours their employers wanted to make them work, without overtime, without rest, a right on the part of the bakers to enter into a contract where their employers could tell them they could make them work whatever they wanted. Looking back now, that seems almost silly, but if you were a judge affiliated with an economic structure that saw workers as essentially disposable, this question of workers' rights to work reasonable hours seems, well, unreasonable. And the Lochner decision justifiably lies on the junk pile of judicial history, a broken monument to the prejudice and error of that Court.

Citizens United and now the Montana decision join this gallery of judicial horribles. Here, the right they turned inside out is the right of free speech, and the power structure served is the vast and unprecedented corporate power structure that exists today.

Under Citizens United, under this inside-out right they have created, you now enjoy the free speech right to hear as much corporate speech as they want to bombard you with. If you are a regular human, you are on your own. If you are a CEO, you can access your corporate treasury to drown out the voices of all of your workers. If you are a massive multinational corporation or if you are a billionaire or a multibillionaire, you now have a right to dominate the paid media airwaves, and we have the free speech right to have to listen to all of that.

At least if you are a billionaire, you are still a human being. And I don't say this judgmentally; this is a legal fact. If you are a corporation, you have no soul, you have no conscience, you have no altruism. You have none of the characteristics that are special to humankind. You are a legal fiction. You are a financial mechanism created for the massing and the efficient use of capital. In the economic sphere, the value of that corporate structure is immense, there is no doubt about it. It has provided great value to our society. But in the political sphere, it is dangerous. But for these five Justices who constantly support corporate interests, to protect the power that comes from being able to provide or promise or threaten massive anonymous expenditures on political attack ads, well, that is just how you see the world.

One day the Citizens United decision will lie next to Lochner on the junk pile of judicial error and prejudice. There is too much wrong with it for it ultimately to survive. But, sadly, today is not that day, and the five conservative Justices have chosen, instead of correcting their error, to double-down on it.

The central and deeply flawed premise of Citizens United was the conservative majority's declaration that vast corporate independent expenditures ``do not give rise to corruption or the appearance of corruption.'' They had no record on which to make that decision. None had ever run in an election before. They had no basis for making that decision, but that was the declaration they issued.

First, whether independent expenditures by corporations pose dangers of corruption or dangers of the appearance of corruption is a factual question that depends on the actual workings of the electoral system. Supreme courts aren't supposed to make findings of fact. So one of the first errors in the Citizens United decision was that they drove off the road of proper judicial procedure, across the rumble strip, and they started making findings of fact--and they did so in a very dangerous way.

The peculiar way the conservative Justices brought the Citizens United question before the Court deprived the Court of any opportunity to consider a record. Ordinarily, the Supreme Court has a record that comes up to it from the court decisions below. But, as my colleagues may recall, the parties in Citizens United did not ask the Court to consider the constitutionality of limiting corporate independent expenditures. That was not addressed below. What happened is that the conservative Supreme Court Justices took it upon themselves to ask a new question and to answer that question they themselves had asked. In doing it this way, the Justices simply declared, with no factual basis, that massive, independent corporate expenditures posed no risk of corruption to our elections. They were wrong, as is obvious to most people.

The case the Court decided today, American Tradition Partnership, created an opportunity for the Court to have dug itself out from the colossal mistake it made in Citizens United. It is an interesting background in comparison to Citizens United because the case came out of Montana, where there is an extensive record within the State of Montana of historical evidence of immense corruption created in that State by corporate influence and corporate campaign money dating all the way back to the copper barons who bought and sold Montana State government in the bad old days. The Montana court also found substantial evidence that Montana voters believe that corporate election expenditures lead to corruption and that this belief has contributed in Montana to widespread cynicism and low voter turnout. Those were findings of fact based on an actual record, and the Montana Supreme Court carefully reviewed those findings of fact. That is what it is supposed to do--not make findings of fact but review them. The Montana court concluded that the State had a compelling interest justifying the law based on the evidence in the record.

The corporations then came in and asked the U.S. Supreme Court to overrule the Montana Supreme Court's decision, arguing that it was inconsistent with Citizens United. At that point, I joined with Senator John McCain, who has long been a national leader on campaign finance issues, in filing a bipartisan amicus brief with the Supreme Court. In our brief, Senator McCain and I challenged that central premise in Citizens United--that phony premise about the corrupting potential of outside political expenditures being nonexistent. The extensive factual record developed in Montana and the facts that have developed since Citizens United on the ground nationally provided the Court with plenty of evidence--evidence that it lacked because of the way it had approached Citizens United.

Our brief showed that Citizens United stood on a pair of false and flawed factual assumptions about our elections. First, the Citizens United decision assumed that outside political expenditures were going to be independent,
that they were not going to be coordinated with political campaigns. Second, the Citizens United majority assumed that there would be disclosure of what special interests were paying for the ads. Both of these assumptions are demonstrably wrong. The ongoing Presidential and congressional races reveal close coordination between campaigns and these so-called independent expenditures. Wealthy donors, who have maxed out their contributions to the candidate, now can use candidate-specific super PACs as convenient proxies to make the functional equivalent of excess campaign contributions. Campaigns and their super PACs have closely connected staff, they have shared consultants, they openly coordinate on fundraising, and they work together on advertising, with super PACs acting, actually, as the successful surrogates for the candidates in States where the candidate has made few appearances or spent little money on advertising. Indeed, in the Republican Presidential primary a candidate-specific super PAC for Senator Santorum spent millions and won the Minnesota primary for Senator Santorum when the candidate himself had no money to spend.

These vast expenditures are not just coordinated closely with candidates and campaigns, they are anonymous, with the special interests behind the ads keeping themselves secret from the American public. As everybody in this Chamber and every American who has a television set knows, the decision in Citizens United opened the floodgates to unlimited corporate and special interest money pouring into our elections. Using phony shell corporations, 501(c) organizations, and super PACs, outside groups can now spend--or, importantly, they can credibly threaten to spend because that can have a big effect in politics--overwhelming amounts of money in support of or against a candidate without any publicly disclosed paper trail.

Although the secretive interests behind the anonymous spending may be hidden from voters, they may be hidden from regulators, they may be hidden from prosecutors, they may be hidden from the media, they will not be hidden from the candidate. They will be well known to the candidate. That alone allows for an undetectable quid pro quo corruption, as the wealthy outside interests can award a candidate with massive, anonymous spending.

Worse than that is a type of corruption I touched on a moment ago when I talked about threats--a corruption made possible by the Citizens United decision that went completely unconsidered by the U.S. Supreme Court. They never even mentioned it. That is the ability to threaten large and secret expenditures without actually having to make them. A candidate could be quietly warned that if they don't take the right position on this issue, if they don't vote right when the amendment or the bill comes up, they will be punished with a large expenditure against them.

Now, how is that a threat under Citizens United? Before Citizens United, if a corporation wanted to threaten a politician, the threat would mean a $5,000 PAC contribution to the politician's opponent. It would mean maybe some fundraising and bundling by the corporate executives and by the corporate lobbyists. I suppose that is something a candidate wouldn't necessarily want, but it is not a very big deal. It happens all the time. And I don't think it throws much weight around here.

Today, after Citizens United, the threat isn't of $5,000 and a couple of fundraisers, the threat is of unlimited, anonymous corporate spending against you--enough to defeat or elect a candidate. And if this threat succeeds, the real danger is that there is no record whatsoever of the corrupt deal for regulators, prosecutors, and media outlets to track.

Sherlock Holmes famously talked in one of his decisions about the dog that didn't bark. In political corruption, we need to be concerned about the ad that didn't run--the ad that didn't run because the politician obediently did what he or she was told.

The brief Senator McCain and I authored laid all of this before the Court. We documented the close coordination between campaigns and this so-called independent spending. We detailed the tangled web of corporate 501(C) and super PAC relationships that allow wealthy interests, special interests, to hide their spending from the public, and we explained the various ways these forms of coordinated identity laundering by special interests create the real threat of quid pro quo corruption. As we said in our brief, ``The campaign finance system assumed by Citizens United is no longer a reality, if it ever was.'' And, frankly, I don't think it ever was.

Confronted with the actual facts on the ground in Montana and nationally, the Supreme Court's conservatives decided they were going to ignore the evidence. There is a blindfold on Lady Justice. But the blindfold on Lady Justice as she holds her scales aloft is supposed to be blindness to the parties who are before her. It is supposed to be blindness to what the interests are. It is not supposed to be a considered and deliberate blindness to the evidence and the facts. But in this case, that is the blindness the Supreme Court has deliberately imposed on itself--or at least the five conservative Justices have.

This conservative bloc has decided to perpetuate the error of Citizens United without considering the facts. Montana will not have an opportunity to file briefs on the merits, explaining the importance of its laws to protect against the corruption that is its historic experience. The attorney general of Montana will not have the opportunity to stand before the Justices to defend his State's law. Once again, the Court has kept from itself any relevant record that might present uncomfortable facts.

In Citizens United, the conservative Justices asked themselves to decide a major constitutional case without any lower court record. And now that they have a fully developed lower court record to proceed on that happens to show how wrong they were, they have no interest in even looking at that record.

We need to act now to fix our broken campaign finance system. The Supreme Court had the chance to correct its error. These five conservative Justices refused to correct their error. They doubled down on their error. They have ignored the evidence of their error that we all see around us, so we cannot wait. We know why they are doing it. We know what is going on. We know it is not going to happen from this Supreme Court, not from those five Justices, so we need to fix this on our own. Americans of all political stripes, whether you are an occupier or tea party, they are disgusted by the influence of unlimited and anonymous corporate cash pouring into our elections, and by campaigns that succeed or that fail depending on how many billionaires support the candidate.

More and more, people in my home State of Rhode Island and around the country believe their government responds only to wealthy special interests. They see jobs disappear and wages stagnate and bailouts and special deals for the big guys and they lose faith that elected officials here in Washington are listening to them.

For now we are left with one weapon in the fight against the overwhelming tide of secret special interest money, and that one weapon is disclosure. Let the sun shine in. At least let the American public know who is behind these massive expenditures.

Earlier this year I introduced the DISCLOSE Act of 2012. I had immense help from the Presiding Officer, Senator Merkley, in doing that work. We call it DISCLOSE 2.0. This legislation will shine a bright light on all of this spending by these powerful special interests.

With this legislation, which now has 44 Senators cosponsoring it, every citizen will know who is spending these great sums of money to get their candidates elected and to influence our elections. Passing this law would begin to remove the dark cloud of unlimited secret money that the Supreme Court has cast over our American elections.

The DISCLOSE Act includes a narrow and reasonable set of provisions. We have trimmed it down so that it should have wide support from Democrats and Republicans. A great number of my Republican colleagues in this body are on record that disclosure and transparency are essential in campaign finance, so we have made every effort to craft an effective and a fair proposal while imposing the least possible burden on the covered organizations.

As Trevor Potter, a Republican, former Chairman of the Federal Election Commission, said in a statement submitted to the Rules Committee: Disclose 2.0 is ``appropriately targeted, narrowly tailored, clearly constitutional and desperately needed.''

The same cannot be said for the conservative majority's holding in Citizens United, echoed again today in American Tradition Partnership. The conservative Justices' desire to maintain their error and to keep the corporate money flowing represents a sad, sad day in the history of the Court. It will, as I said earlier, one day be corrected. One day, Citizens United will lie next to Lochner v. New York and other decisions that have disgraced the Court in the past on the junk heap of judicial history. But until that day, it is up to all of us to work together to restore control of our elections, to restore control of our democracy, to put it back in the hands of the American people, to assure that we continue a government of the people, by the people, and for the people--not a government of the big corporations, by the big corporations, and for the big corporations.

I yield the floor.

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