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

Floor Speech

Location: Washington, DC


Mr. BINGAMAN. Mr. President, I came to speak on the DISCLOSE Act. I would say parenthetically that I congratulate my colleague from Arizona for his statement earlier--a spirited defense of those U.S. business leaders who choose to shift jobs overseas. That is a subject for another day. I will not engage in that debate today, but I think it admirable that he feels compelled to make that case here on the Senate floor today.

I want to speak in support of the DISCLOSE Act. If there is one thing that Democrats and Republicans should be able to agree on, it is that our campaign finance system is broken. My colleague from Rhode Island made that point earlier, and I certainly agree with that.

With the Supreme Court's decision in Citizens United, corporations, unions, and other groups are able to raise millions of dollars through secret contributions and spend unlimited amounts of money to influence Federal elections, as long as they do not directly coordinate with a candidate.

According to the Federal Election Commission, it is expected that something over $11 billion will be spent over the course of the 2012 elections. That is about twice the 2008 level of spending. This is a staggering amount of money, and the source of much of that money will be completely in the dark. As a result, extraordinarily well-financed special interest groups dominate the airwaves, and it is nearly impossible for the average citizen to know who is behind campaign ads. In fact, it is nearly impossible for experts to know who is behind particular campaign ads.

This is not good for public discourse, and it is not good for our democracy. In a healthy democracy, voters need to be able to make informed decisions about the information that is presented to them. The lack of transparency that currently exists in our political system makes that incredibly difficult.

I strongly disagree with the Supreme Court's ruling in the Citizens United case, but the reality is that short of a constitutional amendment or a decision by the Court to reverse its opinion--both occurrences are unlikely anytime in the near future--the ability of Congress to restrict independent expenditures is very limited.

There is something we can do now that would make a difference. We can enhance transparency with respect to the high-volume spending that is influencing our elections. We may not be able to stop the flood of unlimited spending, but we can shed some light on the process and enable the public to at least see where the money is coming from.

The enactment of legislation requiring greater transparency about who is spending on campaigns was specifically called for by the Supreme Court in the Citizens United decision. The Republican leader in the Senate has argued against the DISCLOSE Act on the theory that it would squelch political speech.

I ask unanimous consent to have printed in the Record following my remarks an opinion piece in Politico this morning entitled, ``Mitch McConnell dead wrong on DISCLOSE Act.'' It was written by Adam Skaggs, the senior counsel for the Democracy Program at the Brennan Center for Justice at the New York University School of Law.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

(See exhibit 1.)

Mr. BINGAMAN. In that opinion piece Mr. Skaggs points out that there is no legal or logical basis to support the Republican leader's argument. The DISCLOSE Act is an important step in the direction of requiring transparency. The legislation would require certain organizations that make more than $10,000 in campaign-related expenditures to file a disclosure report with the Federal Election Commission and to report the names of any donors who contributed over $10,000.

About 93 percent of the money raised by super PACs in 2010 through 2011 came from donors giving over $10,000, and this legislation would shed some light on where this money is coming from. The disclosure requirements apply to corporations, to labor unions, to 501(C)(3) nonprofit organizations, and to 527 election advocacy organizations, but they would not apply to 503(c)(3) charitable organizations.

The legislation also includes mechanisms to protect legitimate nonpolitical donations from disclosure and prevents funding sources from being hidden by laundering funds through third-party groups. It is clear our campaign laws are outdated. They are in desperate need of revision. Frankly, I wish there was a consensus in Congress to make more fundamental reforms to our campaign finance system than we are considering today. Unfortunately, this is not presently the case, but I hope that we could build bipartisan support for some basic disclosure provisions and for this narrowly tailored bill that is pending in the Senate.

A much more comprehensive version of the DISCLOSE law was filibustered by Republicans in 2010. The revised version we are currently debating has been narrowed significantly. The provisions banning campaign spending by foreign entities and government contractors were removed. Corporate campaign spending is no longer required to be reported to shareholders, and lobbyists will not have to report their campaign spending in their annual disclosure reports under the bill being considered in the Senate.

The new bill also raises the disclosure trigger from $600 to $10,000 to focus only on large donations and to reduce the burden on organizations. The newest version dropped the ``stand-by-your ad'' provision that required the listing of donors in TV and radio ads.

I am not unsympathetic to first amendment concerns regarding the rights of politically active groups that want to be engaged in the discussions regarding the future of our country, but enabling corporations and special interest groups to use what are essential shell organizations for the simple purpose of spending vast sums of money to influence elections, and to do so in secret, is incredibly harmful to our democracy.

Requiring the disclosure of large donors is a reasonable mechanism to maintain the integrity of our electoral system without infringing on the ability of organizations to actively participate. I urge my colleagues on both sides of the political aisle to take this opportunity to support the modest but important reforms that are included in the DISCLOSE Act.

I yield the floor.

Exhibit 1

[From Politico, July 15, 2012]

Mitch McConnell Dead Wrong on DISCLOSE Act

(By Adam Skaggs)

Senate Minority Leader Mitch McConnell (R-Ky.) has launched a full-throated attack on the DISCLOSE Act, which Democrats are set to bring to the Senate floor on Monday. DISCLOSE supporters say it ensures transparency and accountability in U.S. elections. McConnell, however, contends it's a vehicle for intimidation that will squelch political speech and let the Obama administration compile an ``old-school enemies list'' to punish critics.

Central to McConnell's strongest indictment is that the bill is a lawless end run to get around the Supreme Court's Citizens United decision. McConnell seems to suggest the Democrats' actions are not only wrong--they're un-American.

But McConnell's critique fundamentally mischaracterizes the relationship between the Supreme Court and other branches of our government. By intimating that it is illegitimate for the legislative and executive branches to develop policy in response to Supreme Court decisions, the Senate leader displays ignorance of the basic hydraulics in the founders' system of separated powers.

Indeed, suggesting that enhanced disclosure undermines Citizens United takes what Justice Antonin Scalia might call ``a particularly high degree of chutzpah.'' The decision endorsed robust disclosure--by a near-unanimous, 8-1 vote.

``The First Amendment protects political speech,'' Justice Anthony Kennedy wrote for the majority, ``and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.''

McConnell, by arguing that disclosure undermines the First Amendment, is in fact turning Citizens United on its head.

He also misrepresents the relationship between branches of government. To be sure, the role of the elected branches is distinct from that of the judiciary. It is emphatically the job of the courts to say what the law and Constitution mean, and the President and Congress may not trump the Supreme Court's interpretation. But once the high court announces its interpretation, it is appropriate, sometimes even expected, that elected officials develop new statutes and policies that fit the new parameters.

That is exactly what Congress is seeking to do with DISCLOSE. Citizens United posited the benefits of a ``campaign-finance system that pairs corporate independent expenditures with effective disclosure,'' explaining that ``disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.''

But, because of numerous loopholes in current law, effective disclosure exists today only in theory--not reality.

The proposed law would remedy that deficiency by requiring groups that run campaign ads to disclose their major contributors--while letting donors who earmark contributions for nonpolitical purposes remain anonymous. The bill represents a clear constitutional exercise of congressional power--consistent with the guidelines laid out by the court in Citizens United.

This back-and-forth dialogue among the branches of government, driving the creation and development of law and public policy, is healthy, even essential, for democracy. This policymaking in response to Supreme Court decisions is also routine--contrary to McConnell's specious argument.

After the court read the Civil Rights Act to limit certain gender discrimination claims, for example, Congress responded by passing the Lilly Ledbetter Fair Pay Act to extend the statute of limitations for such claims. In another case, soon after the court struck down the military commissions the Bush administration had set up to try Guantanamo detainees, Congress passed the Military Commissions Act to create new panels it hoped would pass muster before the high court.

Policymaking in the states follows the same dynamic. After the Citizens United decision, more than 10 states responded by amending their laws--many to require disclosure of the new corporate political spending that the ruling enabled.

There is nothing out of the ordinary--and certainly nothing untoward--about these or countless other examples of lawmakers responding to legal precedent. The only remarkable thing is McConnell's contention that this legislative action is somehow illicit.

In fact, legislative responses to Supreme Court rulings can sometimes be necessary. When a court rests its decisions on a policy assumption that turns out to be wrong, elected officials have an obligation to address that discrepancy. Citizens United conditioned corporations' right to unlimited political speech on transparency--pairing corporate spending with ``effective disclosure''--so voters could better understand what groups are trying to influence their votes.

By passing DISCLOSE, Congress can ensure that reality conforms to the idealized disclosure system that the Supreme Court assumed existed.

While they're at it, Congress should address one more Citizens United problem. The ruling allows corporations to make independent expenditures because, it said, spending wholly independent of candidate campaigns could not lead to corruption.

Unfortunately, much of the outside spending now dominating the 2012 election has come from candidate-specific super PACs, functioning like de facto arms of the candidate campaigns. About as far from ``wholly independent'' as can be imagined.

Congress should adopt meaningful coordination rules to police the ties between campaigns and super PACs--and ensure that groups claiming to be ``independent'' really are.

It is not an ``end run'' around a Supreme Court ruling that embraced transparency and independence for Congress to ensure transparency and independence. Despite McConnell's `Chicken Little' rhetoric, it's what democracy is about.

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