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Public Statements

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

Floor Speech

Location: Washington, DC


Mr. WHITEHOUSE. Madam President, in 1822, the Founding Father James Madison wrote:

A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives.

A vote for DISCLOSE is a vote to arm the people with the power that knowledge gives, to arm them with the popular information about elections--information necessary to prevent this great popular government of ours from becoming a special interest farce, information necessary to protect this democracy from the tragedy, as John McCain predicted, of scandal that will result.

Give the American people the information they need to be their own governors. Vote for DISCLOSE.

I yield back the remainder of our time.


Mr. WHITEHOUSE. Mr. President, may I ask the Senator from Colorado that in an environment in which the bulk of the political spending is being done by outside groups and the bulk of the outside spending groups is secret, what is the likelihood of those goals being accomplished with the best interests of the American people in mind and not with the best interests of the special interests behind those secret donations in mind?

Mr. BENNET. I thank the Senator for his question. I think it is going to be made much more difficult. There are plenty of people I know at home who watch the stuff going on, on TV, and they don't recognize themselves and the cartoon that is playing. Sometimes they don't recognize their priorities playing out on the Senate floor. They don't recognize the convictions they have or the aspirations they have for the communities or the debate they are having. It is a natural reaction for people to say: I don't want any part of that.

As Dick Durbin was saying, somehow this is a knife fight that has nothing to do with me, and I am not going to pay attention to it. The problem is, as with any fight such as that, what we end up doing is ducking and covering because that is what we have to do in order to stay out of the way. That isn't going to put us in the position of being able to deliver on the promise of generation after generation of Americans to make sure the folks coming after us actually have more opportunity, not less, than we had.

Remember, this is a tiny proposal. This is simply requiring disclosure. It is not even requiring a disclaimer. Frankly, if it were up to me, I would want people who funded these committees to have to stand up at the end of the ads to say: I am John Smith or I am Mary Jones, and I paid for this ad. But this bill doesn't even do that. All it says is they have to say who they are. I think poll after poll shows that 90 percent of Americans, Democrats, Republicans, Independents, agree with that.

This is one issue where the sort of optical issues that happened somehow on the beltway ought to not lead us to a place where we obscure the vision of the American people, which on this issue is as clear as can be. We have to get this done and get on to the rest of the business at hand.

I yield the floor.


Mr. WHITEHOUSE. Mr. President, let me thank Senator Coons for his remarks, echo one point he made, and make an announcement.

The point I wish to echo is that the importance of American democracy and of clean American elections does, indeed, extend beyond our borders, as Senator Coons mentioned from his role as the chair of the Subcommittee on Africa in the Foreign Relations Committee.

I grew up in the Foreign Service and served on the Intelligence Committee. I have traveled pretty widely in that role. There is a reason Presidents have talked about our Nation as a city on the hill. There is a reason Presidents have described our Nation as a lamp raised in the darkness, that the glow from what we accomplish lights the world. There is a reason the hymn ``America The Beautiful'' talks about how our ``alabaster cities gleam.'' There is not much gleam on those alabaster cities tonight, not after this vote. There is a lot of mud on the walls of those cities, and it is going to get worse unless we pass this vote.

And people get it, which brings me to my announcement, which is that up to this evening, the Progressive Change Campaign Committee has had 34,269 Americans sign its petition supporting the DISCLOSE Act. Demand Progress has had over 50,000 Americans sign up for its petition supporting the DISCLOSE Act. CREDO Action, as I mentioned earlier, has had 213,000 Americans--213,000 Americans--sign up as citizen cosponsors of the DISCLOSE Act. This stack of papers I have in the Chamber has 57 names to a page--213,000 Americans who really put their name down there, something that, evidently, the big, sneaky donors are not willing to do and our colleagues are not willing to force them to do.

And has 320,378 signatures supporting the DISCLOSE Act. That Web site got so much activity earlier tonight, as we rolled into this vote, that the Web site crashed from the activity of Americans trying to be a part of the debate we are having here, trying to make their voices heard because they perfectly well understand that these big special interests--the ones that do not want how and why they spend their money in politics to be known to anybody--they do not have Americans' best interests at heart, and they see this coming, and they want to fight back.

That total is 617,000 Americans who have signed up to have our backs and to support this bill.

So as we go forward into the remarks from Senator Pryor, Senator Blumenthal, and then Senator Franken, we should know that it is not just the one, two, three, four, five, six of us who are now in this Chamber. For each one of us, there are 100,000 Americans who are behind us and want this to happen.


Mr. WHITEHOUSE. May I follow up on the points that Senator Merkley made. The comparison he made to the constitutional change that took the Senate from election by State legislators to direct election by the people is very much a model for what is happening here. There was a desire to get the vote away from the special interests and put it in the hands of the actual people.

Here it is a desire to get the spending, the money behind the vote, out of the hands of the special interests and back to the people. What Citizens United did was to go backwards, open the flood gates of special interest money, and allow it to be secret. Try to put ordinary voters up against that kind of a force. It is not fair to ordinary voters. It is not right. In some respects it puts the right they are taking up inside out, and that is the right of freedom of speech.

I think we all have seen the four freedoms, the posters by Norman Rockwell. Perhaps the most famous of those posters is the one of the fellow in the tan windbreaker jacket, a thin guy. He is standing up tall surrounded by people, clearly at a townhall meeting. Why is he standing and what is he doing? He is speaking. He is having his say.

The way Citizens United worked out, they are basically saying we do not have a constitutional right to speak. We have a constitutional right to listen. We have a constitutional right to listen when big money speaks. It is essentially a shut-up-and-listen-to-the-big-money version of the first amendment. When money is speech, which is the principle of Citizens United, guess what. Those with the most money get the most speech.

Those who do not have a lot of money do not get a lot of speech, and those who have no money get no speech. That is not what the Founders intended. So there is a strong similarity between the move to take the vote and put it in popular hands and what we are trying to do with disclosure, which is put the money in popular hands. We cannot do that under Citizens United.

With the DISCLOSE Act, at least you know what is going on. You can look at the game that is being played. It is cards up on the table. If you are being denied the ability to speak on even terms with the CEO or a billionaire or a major corporation or some big lobbying group, at least you have the right to know what they are doing, what they are saying, what is going on. You can keep score. When you get together, you can get mad and do something about it.

Behind the veil of secrecy you cannot even keep score. You do not know what is going on.


Mr. WHITEHOUSE. Mr. President, I was a prosecutor for many years. I was the U.S. attorney for our State. I was the attorney general for our State. When you are prosecuting crimes, there is one very important thing that you always look for. Motive. You look for a motive. And I think one of the things that is obvious to all Americans is that the folks who engage in unlimited election spending do so because they have a motive. Someone may give $1,000 here or there because they are passionate about an issue. They may give $20 because they know the councilman who is running. But these folks who are giving $4 million at a hike, they are doing it because they have a motive, and it is important for the public to know what that motive is.

So now you take the next step. If it is unlimited, it is to open the doors for the people who have a motive. If it is secret, what does it tell you about that motive? If it is secret, what it tells you about that motive is that it is a bad motive for the American people.

This goes back to the point Senator Landrieu and Senator Merkley were making, whether it is trying to help get your kids through college, not having to pay the increased interest rates, to be able to get a Pell grant or whether it is paying to put food on the table or trying to get a decent job--and Rhode Island still has 11 percent unemployment--you can name your issue.

If this special interest, unlimited, secret money was aligned with what the American people want, they would not be fighting about this. They would not care whether it was secret. They need it to be secret. They filibustered this bill because they know those special interest motives are against the public interest, against the interests of the American people. There is no other logic.

There is no reason people would give that much money in a race--unlimited money--if they didn't have a motive. There is no reason they would want their behavior to be secret unless that motive was bad. There is no other explanation.

Mr. MERKLEY. I ask the Senator, when the company gets involved in that manner or a billionaire gets involved in that manner and their motive is largely to advance their financial interests, do they use that to fund ads that are an accurate representation of the facts?

Mr. WHITEHOUSE. That is a fascinating development. I don't remember the numbers off the top of my head, but I will try. My recollection is that before the super PACs kicked off with all this, 9 percent of the ads were negative in the last election cycle, at a time when 78 percent, I want to say, were negative--or 70 percent. It went from 9 percent being negative the cycle before--the Presidential cycle before--to 70 percent being negative now. That is nearly eight times as much negativity--more than half, nearly three-quarters, where it was less than 1 in 10 before--an explosion of negativity.

So we know that is happening. The other thing we know is happening is it is misleading. It is not accurate. It is deceptive. The Annenberg Institute has done a study of the top four outside spenders--outside political spenders that aren't campaigns or parties--these special influence manipulating machines. The top four--they looked at their ads and, if I remember the figure correctly, 76 percent of them contained information that was deceptive.

Mr. MERKLEY. While the Senator is on that topic, I have the Annenberg chart here, I believe.

Mr. WHITEHOUSE. There it is, 85 percent. I underestimated it.

Mr. MERKLEY. It was 85 percent deceptive and 15 percent accurate. To the other point, this is taking one of the contests between Gingrich and Romney. You can see the red bar, the negative ads, benefiting Romney for attacks on Gingrich. Positive ads for Romney was zero. Over here, Gingrich didn't have very much super PAC money in this race and so it kind of was wiped out completely.

So what we see is not just a flood of money on behalf of the powerful special interests, but it is being spent to attack people--the negative side--and through lying. Can this in any possible way be healthy for a democracy?

Ms. LANDRIEU. I will respond to that, if I may. The Senator hit the nail on the head. Some people--I am one of them--believe there is literally an effort to discourage people generally from believing that government can work at all by being so negative either to an individual or to the concept of government that it discourages people from voting and participating, and the end result of that is that a small group can manipulate the system.

If people think the system is rigged, which it seems like it is getting more and more because of laws and rules such as this that we cannot seem to get straight, what happens is people get despondent and turned off, and then the special interests can run the show if people don't vote and contribute. So it is a part of a whole strategy to kind of take the government away from the people and hand it over to a group of special interests with unlimited money, secret attacks to basically fashion and write the laws that benefit the few as opposed to the masses. It is completely against the concept of our democracy.

Again, I know there are people who have a lot more money than others, and they should be free to make decisions about what they do with it. I don't have a problem with that, although I have supported campaign limits. But it is the disclosure--the lack of disclosure, I should say, that is frightening here and the secret nature of this--to go on television night after night and tell people how this person is either wrong or the system is broken and people stay home and less and less people vote and the few people who have the power, access, and privilege write the rules even more in their own favor.

This is taking our democracy, in a dangerous way, in the wrong direction.

Mr. WHITEHOUSE. If I can add an additional point that Senator McCain and I made in our brief to the U.S. Supreme Court opposing the Citizens United decision and asking for its reconsideration. It is terrible what these negative ads filled with deception do to the American public, and it is discouraging to people about the participation we expect of Americans and government and, ultimately, it leads to corruption, as the Senator points out. At least in the example Senator Landrieu gave, you see the spending. There is at least a dirty, deceptive, negative attack campaign up on the air. So it is not completely invisible. You just don't know who is behind it.

What that leaves open--again, this is the prosecutor in me talking--is the threat of that same campaign--the visit from the lobbyist who comes in to the Congressman and sits him down in a quiet room and says: Have a look at this and places a 30-second commercial--negative, deceptive, slashing, vitriolic, vile, all against him, and says, you know what, under Citizens United, we have the right to spend $5 million playing that ad against you all through the next election, and we are thinking about doing it. You know what, under Citizens United, we have the right to put up phony shell corporations so they will never see our fingerprints. The only thing the public will see is Americans for peace, puppies, and prosperity. That will be the phony name we are going to use. If you vote right, this will be the last time you hear from me. If you don't vote right, you are going to hear $5 million worth from me through my shell companies. How are you going to vote?

If the Congressman gives way to that kind of pressure--pressure that was never possible before Citizens United and is not as possible if it is not secret--then you have no clues and you have actual corruption and the system is even worse than what we see out there.

In some respect, as awful as what we see is that it might be the iceberg that you see above the water and the 90 percent that is under the water that you don't see could be worse still.

Mr. MERKLEY. To my colleague from Rhode Island, I ask this: How is it possible for 5 members of the Supreme Court to look at this issue of unlimited, secret spending and knowing that can be used to intimidate and corrupt the electoral process and corrupt the debate by the threat of future activities, future secret activities, secret negative, lying activity, and not see the corruptive or corrosive effect on the American democracy?

Mr. WHITEHOUSE. That is an interesting question. One would have to look into the hearts of those five Justices to get the answer to it. But why they would be willing to make such a dramatic, activist move without working with four other colleagues to try to bring them along--why it is always those five making these activist steps toward the Republican agenda is a question I can't answer. What is their motive? They know that in their hearts. I don't.

One can observe that over and over again, the five Justices who are performing the Republican role on that Supreme Court are delivering the goods and doing things that advance the Republican agenda. That is not me talking, those are people who have followed this Court for decades--the most prominent writers about the Supreme Court--who noted that fact.

Ms. LANDRIEU. May I expand on the Citizens United? The Senator from Rhode Island and Senator McCain wrote a brief to the Supreme Court suggesting the detrimental impact of the decision the five Justices have made. Did they, in that decision--how did they treat corporations? Do they treat corporations as people? Is that what they did, on equal footing with Citizens United, or was it more of just there should not be limits on contributions? Did they say that corporations are like people and should be allowed to contribute unlimited amounts?

Mr. WHITEHOUSE. In effect, that is what they did. The famous expression that ``corporations are people, my friends,'' is the expression actually of Governor Romney. But it sort of attached itself to the Citizens United decision, which doesn't actually use those words. But it does treat corporations as having the same rights in the political process as human beings do. They don't have consciences because they are not human.

Ms. LANDRIEU. They don't have hearts, and they don't have minds.

Mr. WHITEHOUSE. They don't have children. They don't have aspirations. They don't have souls because they are not human. They don't have goals. They don't have all the things that make us different and make us human. But, evidently, they have the same rights. Because they don't truly exist, it is a legal fact that they are a legal fiction. What that is doing is empowering the people behind the corporation, the people who control the corporation, ultimately.

Ms. LANDRIEU. It is actually giving more power to the people who control the corporation. Not only do they control their own vote and personal opinion, which is fine, but it gives them extra power because they have access to wealth and influence in the business structure.

It also occurs to me that if the tiny State of Delaware would take this one step further, they might be able to expand their congressional delegation in Washington because I think they have quite a few corporations that are evidently alive and well and walking around in Delaware. Since they have many corporations that are there, they should press this issue a little further and they might only be stuck with two Senators, but who knows how many House Members they could get--maybe equal to California.

This issue or decision the Court made is mind-numbing, doesn't make sense, and it flies in the face of what is good for our democracy and in the face of decisions that courts have made. That aside, which is troubling enough, then you take the next step, as the Senator from Oregon knows, and say that not only are corporations people and have access to their own vote and if you happen to run a corporation, you get a vote for that corporation as well and all the people who run it, then you can do it all in secret. It is very troubling.

Mr. MERKLEY. Even the corporation itself doesn't know what it is doing; that is, the corporation might have 10,000 shareholders and they are the cooperation. The corporation is a legal fiction, as our colleague says, that allows a board of directors to make decisions on behalf of those thousands of people who own stock. So they are not spending their own money, they are spending money that belongs to the stockholders. But those stockholders have no idea how that money is being spent under Citizens United. So it is not just corporations spending money that is secret from the rest of us, it is the officers spending it secretly from the corporation itself, and that is the stockholders.

Ms. LANDRIEU. It makes no sense. We can stay here all night, and I am not sure we can get anybody to understand it. We have to reverse this law and get transparency back into our electoral process.


Mr. WHITEHOUSE. Madam President, I will be the last speaker for tonight. Let me close with a number of thank-yous.

First, let me thank the Presiding Officer, Senator Landrieu of Louisiana, for staying past the midnight hour to help keep the Senate open. Let me thank Senator Merkley, who has been--to the extent one can be enthusiastic about staying until this hour, there he is, smiling. Yes, ``enthusiastic'' is the right word. He was part of a group Senator Schumer organized himself, along with Senator Michael Bennet, Senator Tom Udall, Senator Al Franken, Senator JEANNE SHAHEEN, Senator Jeff Merkley, and myself, who worked together to redraft this legislation, trim it down, and to organize today's vote and events and tomorrow's vote. So I thank all of them for their enormously hard work.

I thank the pages, who have had to stay very late, and the floor staff, who have had to stay very late. I appreciate the fact that we have put a burden on them and on their families, and we would not be doing that if we didn't consider this to be a very important issue.

I wish to thank the entire Democratic caucus for their support. Our colleague Bill Nelson has had a unique experience. He has actually ridden a rocket up into space. He has been up with the NASA program as an astronaut. In some respects, I feel that I and others who were leading this were really doing nothing more than riding a rocket of the enthusiasm of our caucus to get this thing done for the sake of our country.

I thank the American people, who went out of their way to have their voices heard in this debate. We know the public is strongly behind this.

Six in ten Americans say the middle class isn't going to catch a break while the big lobbyists and big donors control things in Washington. Americans get that you don't spend this kind of money without a motive, and they get that if you will only do it in secret, it is probably not a good motive. They can figure this out, so they understand. Seven out of ten believe super PACs should be outright illegal--not secret, but illegal. Seven in ten agree with the statement that new rules that let corporations, unions, and people give unlimited money to super PACs will lead to corruption. Seventy percent of Americans agree with that. Seventy-seven percent want to reform the campaign finance laws and consider that to be very important. As a number of my colleagues have said, one in four Americans is so upset by what this has done to degrade American democracy. They think it makes them actually less likely to go out and vote because they figure, why bother, this is just a racket at this point.

These numbers really should be a call to arms for the people who believe America is, in fact, a city on a hill, the American exceptionalists--of which I consider myself to be one--the lamp held up to other nations, the alabaster city is gleaming. That is all for real, but the Citizens United decision and the failure to support us on DISCLOSE does nothing for that.

But it wasn't just the polling that brought that up to a lot of people. People came online in a very big way to participate in this debate--617,000. Mr. President, 617,000 Americans have signed up as supporters of the DISCLOSE Act now on a variety of different Web sites, including DISCLOSE Act.Com. DISCLOSE Act.Com got so much activity just before the vote that the public interest in it actually crashed the Web site. So the American public is really paying attention. I thank those folks who paid attention, and I thank those who set up the opportunities for those Americans to have their voices heard. I appreciate it very much.

I want to thank some of the leading newspapers in this country for their editorial support in the past few days. I have already spoken before about the New York Times' editorial, so I won't go back and repeat it at length, except for the phrase they used:

Corporations love the secrecy ..... because it protects them from scrutiny by nosey shareholders and consumers.

The Washington Post had a very strong editorial entitled ``Expose the Fat Cats.'' It said the following things:

Not a single Republican in the chamber has expressed support for the Disclose Act ..... It should be interesting to hear how the Republican senators justify this monumental concealment of campaign cash.

They allude to the Watergate break-in and the bad old days of unregulated cash contributions and describe what has happened recently after Citizens United as, ``We seem to have created the political equivalent of secret Swiss bank accounts.''

They asked the question, Who is writing checks for $10 million or $1 million at a single throw? And what do they want? We don't know. This shadowy bazaar undermines our political system. They note that until recently Republicans supported full disclosure. Now that the tide of money is running in their favor, they don't. They described this DISCLOSE bill as a reasonable bill that would, among other things, require identification of donors of $10,000 or more to certain organizations that spend money on political campaigns, and they close with this question and this observation: There is a very good chance that when some government decision or vote comes along next year, responsible politicians will find themselves haunted by the secret money of the 2012 campaign.

Is it really worth it? The Washington Post asks: Do these donors deserve to remain hidden? Why can't they handle a little sunshine?

I want to thank USA Today for a July 6 editorial supporting this: ``Freed by the Supreme Court from spending limits,'' they observed, ``all manner of special interests are opening the spigots to buy influence.''

``Especially worrisome,'' USA Today points out, ``are secret donations, which are proliferating. A corrupting influence in any campaign, secret money is even more dangerous in less expensive races where it can buy a seat in Congress or a state legislature, without voters knowing who the buyers are or what their agenda is.''

USA Today folks said:

Citizens United left the public only one way to protect itself from the rising threat disclosure. At the federal level, this would be achieved by the Disclose Act. ..... Today's version, scheduled for Senate debate this month, requires that all groups--social welfare, union and business--report all expenditures and all donations more than $10,000.

They fear that ``the inevitable result is that come November, voters in many closely contested races will make their decisions based on a late flood of ads of dubious credibility paid for by people whose names and motives are unknown. How long it will take voters to realize they're getting conned and demand disclosure is anyone's guess.''

I will briefly point out that the claim that the DISCLOSE Act favors unions is a complete nonstarter as a criticism. The bill is very short. It has very big print. You can read it very quickly. There is nothing in the bill that gives unions any advantage over any other form of organization. It is just not there.

I have challenged Republican colleagues to point to a single provision or make a single counterproposal, and they have done neither. The DISCLOSE Act applies equally to all corporations, period, end of story.

The $10,000 threshold eliminates another problem, which is this business that membership organizations are going to have to disclose their donor list. As recently as today, the Republican leader said this will force organizations to disclose their donor lists. It won't. Not at a $10,000 threshold. You can get a lifetime membership in the National Rifle Association for $1,000. If you are a cat and you have nine lives, you can get nine lifetime memberships in the NRA and still not break the $10,000 threshold. It will catch 93 percent of the money that goes into the super PACs because it goes in in such big chunks.

So it is a good number to use. It protects the small membership organizations but hits virtually all the big donors. Clearly, it is not an attack on the first amendment. This charge has its roots only in the opponents' imagination, not in the U.S. Constitution. It contains no restrictions or limitations on speech of any kind. None. Pure disclosure legislation, plain and simple, as my Republican colleagues have heretofore usually supported.

The Court, in Citizens United, fully supported disclosure. Prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions.

An important point, going back to the words that began this vote, from our Founding Father James Madison: A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both. The Supreme Court recognized this, and clearly it is constitutional.

The last is the argument that this bill in some way will intimidate the big spenders. First of all, the idea of the billionaire Koch brothers or gigantic coal barons or ExxonMobil--the largest corporation in the world--being intimidated by the unkind words of some blogger is preposterous on its face.

Second, Justice Scalia has said: Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.

May I point out that it is a rather small courage. On the way here this afternoon, I passed through the trolley lobby. Down in the trolley lobby was a young marine from Pennsylvania who had lost both his legs to an IED explosion in Afghanistan. We can ask our young men and women to travel the roads of Kandahar and to risk blowing off their legs and coming home like that young man, but we can't ask billionaire big spenders to even show who they are even though, clearly, the link to motive and influence and control and corruption is apparent? It is a ridiculous proposition, and I hope my colleagues will not persist in following it.

They have even compared themselves to the NAACP during the civil rights movement--Black families burned out of their homes, and they compare the Koch brothers being criticized by bloggers to that. It simply isn't so, and it simply isn't right.

I will conclude by saying that we are not done. This is too important. It is too important for what America stands for. It is too important for the middle class who are going to be losers in the debates that are influenced and corrupted by special interest money. It is too important for the world which depends on the example that America provides.

So we didn't have any luck today. We are going to vote again tomorrow. I urge my colleagues to vote with us. But even if we don't win tomorrow, we will be back again and again and again.

When Joshua took the Israelites around the city of Jericho, they went around and around blowing their rams horns so that those walls would come tumbling down. It didn't happen on the first circuit, it didn't happen on the second. According to the Bible, Joshua had to go around the city of Jericho seven times before the walls came tumbling down. I don't care if we have to do this 7 times or 77 times; we are going to do this because it is right.

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