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Public Statements

Disclose Act of 2012--Motion to Proceed--Continued

Floor Speech

Location: Washington, DC


Mr. REED. Mr. President, I rise today to join my colleagues in supporting the DISCLOSE Act.

I commend Senator Blumenthal for his extraordinarily insightful and articulate words with respect to this critical issue. I particularly wish to commend the Senator from Rhode Island, Mr. Whitehouse. He has been the driving force to bring this issue to the floor, to educate all of us in the Senate and the American people about what is at stake, and in many respects, it is our democracy. It is the presumption that every American has their vote count just as much as anybody else's vote, that elections are decided based upon issues and ideas and not by the sheer volume and the sheer magnitude of 30-second advertisements that are designed more to divert than to inform, designed more to excite than to inform. Most people believe in a system that is based on thoughtful consideration of ideas and issues and in a system in which everyone's vote counts.

Senator Whitehouse is an extraordinarily gifted attorney. He understands these issues perhaps as well as anyone in this body. He was a Federal attorney and our state's attorney general, and he has brought not just knowledge of the Constitution but this passion for justice and fairness and decency and democracy to the forefront of our debate today, and this will not be the last day we will be debating this issue. So let me begin by commending his efforts.

A fundamental right guaranteed by the Constitution is the right to vote. Each citizens gets one vote, and this right represents a critical pillar of our democracy because we treat everyone equally, allowing each citizen to have this crucial and critical say in who governs, on the issues, and ultimately what is the course of this great country.

But because of the Supreme Court decision in Citizens United, I worry that our political and civic conversations now advantage those who flood our airwaves, papers, and Web sites by talking--if not shouting--louder simply because they have more money and resources to do so.

The New York Times recently included the following in an article, giving us one indication of how much money is awash in our political system, and it reflects what my colleague from Connecticut said.

During the 2010 midterm elections, tax-exempt groups outspent PACs by a 3-2 margin, according to a recent study by the Center for Responsive Politics and the Center for Public Integrity, with most of that money devoted to attacking Democrats or defending Republicans. And such groups have accounted for two-thirds of the political advertising bought by the biggest outside spenders so far in the 2012 election cycle, according to Kantar Media's Campaign Media Analysis Group, with close to $100 million in issue ads.

And the clock is still ticking and the amount is accumulating.

That electioneering in the shadows is not what most Americans want. They want robust debate. They want candidates to engage as candidates, not the witting or unwitting beneficiaries or victims of anonymous advertisements in their race.

This is not, I believe, what the creators of the Constitution thought would happen or hoped would happen. They envisioned a country in which the best ideas and the best arguments prevailed regardless of how loudly one spoke; that it was the quality of the argument, not the volume of the speaker, that mattered.

What should be important is this quality of speech, not the quantity, and, frankly, there is a direct correlation between the amount of money you have today and the quantity of your speech in the media. That is just the reality of paid advertisement, which dominates political campaigns.

But I think this vision, because of Citizens United, has been turned on its head. Now those with the greatest resources, the most money, have been given a disproportionate advantage.

By allowing corporations and unions to unleash the full power of their treasury funds and explicitly advocate for the election or defeat of candidates in Federal or State elections in the name of protecting and promoting free speech, I think the Supreme Court missed the mark. It missed the mark about the centrality of an individual's vote and the substance of a campaign being about ideas, not about derogatory advertising, not about anything else except the issues. That is the ideal. That is what our Founding Fathers were hoping for and, indeed, I think expecting, and I think that has been terribly distorted by this opinion.

There is an interesting situation going on here. In the attempt to create, under Citizens United, what the Supreme Court, I expect, was hoping to do--create an atmosphere in which speech is free--they created a situation in which speech is no longer free. Effective speech is no longer free; it actually comes with a very high cost and goes to the person who is the highest bidder. That is not free speech, not effective free speech; it is purchased speech. And if our elections are going to be decided not by free speech but by purchased speech, they will be won always by the highest bidder, by the person with the biggest wallet, the person who is willing to spend as much as necessary to prevail. And it will raise and it does raise the specter of, is this about the future of the country or is this about the narrow self-interest of someone who is willing to invest a great deal of money into a particular race? And I think most people would conclude that it is probably about the narrow self-interests of someone who invests a great deal of money in a race.

Simply put, I think Citizens United is deeply flawed, and more than one expert has voiced their frustration and disappointment with this decision.

Shortly after the Supreme Court handed down its decision in Citizens United in 2010, Norm Ornstein of the American Enterprise Institute, which is a center-right--more right than center, perhaps--organization, wrote, in a column in Roll Call called ``Court Way Oversteps its Authority With the Citizens United Case,'' these words:

I hoped Citizens United would be decided narrowly but feared that the court would take a meat ax to a century of settled law and policy. My worst fears were realized.

This decision equates corporations, which have one goal, to make money, with individual citizens, who have many goals and motives in their lives, including making a better society, protecting their children and grandchildren and future generations, and so on .....

This was a case never raised by the plaintiffs and never formally brought before the Roberts Court. We do not have an instance where an actual for-profit corporation has complained that it has been barred from its ability to get its message across in the political process. The cases overturned and the laws struck down were considered carefully by judges and Congresses past, including in the McConnell decision barely six years ago. Only one thing has changed since--the political and ideological complexion of the Supreme Court brought on in particular by the retirement of Sandra Day O'Connor.

Additionally, Richard Posner, a respected Conservative Judge on the 7th Circuit Court of Appeals, who was appointed to the bench by President Ronald Reagan, recently stated the following on his blog:

[T]he Court, rather naively as it seems to most observers, reasoned in the Citizens United case that the risk of corruption would be slight if the donor was not contributing to a candidate or a political party, but merely expressing his political preferences through an independent organization such as a super PAC--an organization neither controlled by nor even coordinating with a candidate or political party. .....

It thus is difficult to see what practical difference there is between super PAC donations and direct campaign donations, from a corruption standpoint. A super PAC is a valuable weapon for a campaign, as the heavy expenditures of Restore Our Future, the large super PAC that supports Romney and has attacked his opponents, proves; the donors to it are known; and it is unclear why they should expect less quid pro quo from their favored candidate if he's successful than a direct donor to the candidate's campaign would be.

Judge Posner, I think, is making the case very effectively. If there are limits on direct individual donors' contributions because you do not even want to create the appearance of a quid pro quo, the idea a super PAC, whose donors are known, has less of an ability to influence a candidate and more--I think, significantly, not only a candidate but perhaps an elected official--that does not follow. I think Judge Posner's comments are very on point in that this also invites the perception and perhaps the reality of inappropriate influence on candidates and on elected officials. That was a great deal at the heart of why we passed campaign reform legislation decades ago.

Even these points of view by Norm Ornstein and by Judge Posner have not, unfortunately, convinced my Republican colleagues to join us in effect in trying to correct a deficiency which my able colleague from Connecticut pointed out was the fact that the case of Citizens United presumes disclosure. We have tried to debate this legislation and variations many times before. I think we have taken even much stronger action in previous versions, but today we are here in a good-faith effort to meet our colleagues more than halfway.

There are those who opposed previous versions of the DISCLOSE Act on the grounds that there were provisions unrelated to disclosure. But these concerns are addressed head on in this legislation crafted by my colleague because it focuses solely on disclosure, and it is effective after this fall's elections. So I ask my colleagues, especially those who have said they are all for disclosure, to join us. Join us to pass this legislation because it is all about disclosure.

Let me go back to the language of the Supreme Court opinion quoted by Senator Blumenthal because they presume in the decision there would be full disclosure, and that is what we are asking for tonight on this floor: Give the Court what it thought it had, a system by which the American public can know immediately who is putting all this money into the elections.

In the words of the Court in Citizens United:

[P]rompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are ``in the pocket'' of so-called moneyed interests.

The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

That is what the court said. Yet, if we do not pass this legislation, there will not be enough disclosure; because corporate shareholders cannot make judgments about what their corporate directors and managers are investing in, in terms of political activities. Individuals cannot make judgments about the commercials they are seeing because they don't know who is behind them, really.

If we want to create the context which presumably undergirded the Supreme Court's decision, we have to pass this legislation. If you do not want to ignore, indeed, what the Court has said, do not want to ignore what our constituents have said, and do not want to allow this anonymous money to flood our elections, to not raise doubt about the process, to not undercut what people traditionally think is the American way--one person, one vote;--then let's start by passing this legislation.

I urge my colleagues to support the DISCLOSE Act.

I yield the floor.


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