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

Floor Speech

Location: Washington, DC


Mr. UDALL of New Mexico. Mr. President, let me, first of all, thank Senator Whitehouse for heading up this campaign finance task force. I think this has been a real solid effort by a number of Senators. Senator Whitehouse, whether it is at Netroots or on the Senate floor, has been participating this evening, and we appreciate all of his help. The Presiding Officer, Senator Merkley, has also been a key member of the task force. Senator Bennet, who is going to be speaking after I have finished, is another member of the task force. So we appreciate being allowed to get together.

What we need to be reminded of this evening is where we are. We just took
a vote to try to get onto the DISCLOSE Act, and 51 Democrats said let's get onto the bill, with 44 Republicans--not a single Republican--voting not to allow us to move to the bill.

Basically, as Senators Bennet, Whitehouse, and Merkley know, the Senate is now in the mode of a full filibuster. We are on a motion to proceed and have not been allowed to move to the bill. So people should recognize that is the posture we are in right now, so we are going to be down here talking about this issue.

I have joined my colleagues to talk about this serious problem of campaign finance reform, one that threatens the very nature of our democracy. That threat is the unprecedented flow of money into our elections. We need to look at this dangerous torrent of money and consider how to stop it. I believe a step in the right direction is the DISCLOSE Act.

In January 2010 the Supreme Court issued its disastrous opinion in Citizens United v. FEC. Two months later, the DC Circuit Court of Appeals decided the SpeechNow v. FEC, which the Supreme Court upheld. These two cases gave rise to super PACs. They opened the floodgates of secret cash. Super PACs have poured millions of dollars into negative and misleading campaign ads, and, as they often do, under the cover of darkness--quiet, stealthy, without disclosing the true source of the donations.

It is ironic. They make all this sound and fury on the airwaves, but they are silent on who is paying for it. Why? Why the silence? Why the cat and mouse? The American people are blessed with common sense. They know usually when someone will not admit to something it is because there is something to hide. They have seen where all that shadowy campaign money can take us--to corruption, to scandal, to places like Watergate, dark days where we have been before. And believe me, I don't think the American people want to go back to the era when we had big suitcases of cash, with the President keeping cash in his White House safe. The American people don't want to return to that time.

The Citizens United and SpeechNow decision sparked a renewed focus on the need for campaign finance reform. But let's be clear, the Court laid the groundwork for this broken system many years ago. In 1976 the Court held in Buckley v. Valeo that restricting independent campaign expenditures violates the first amendment right to free speech. That ruling established the flawed precedent that money and speech are the same thing--another nail in the coffin of common sense. The result: elections based too much on the ability to raise money and too little on the quality of ideas, too much on a dedication to fundraising and too little on the public good.

Money and free speech are not the same, and it is a tortured logic to say they are. They may seem comparable in the rarified hallways of the Supreme Court but not in the rough and tumble streets of political campaigns. We know this. The super PACs writing these huge checks know it too, and they must be chuckling all the way to the bank. But the American people do not find this funny--infuriating perhaps but definitely not funny.

I don't think we can truly fix this broken system until we undo the false premise that spending money on elections is the same thing as the constitutional right of free speech. That can only be achieved if the Court overturns Buckley or we amend the Constitution. Until then, we will fall short of the real reform that is needed. But we still should do all we can in the meantime to make a bad situation better, and that is what we have been trying to do with the DISCLOSE Act. That is what we must do with the DISCLOSE Act. It is not the comprehensive reform I would like to see, but the perfect should not be the enemy of the good, and the DISCLOSE Act is the good we can do now. It is a step forward, a vital step forward, even with the flawed Supreme Court precedents that constrain us.

The DISCLOSE Act is a step out of the shadows, and that is exactly where we need to be headed. The DISCLOSE Act of 2012 asks a simple question--an important and eminently fair question: Where does the money come from and where is it going?

If we don't start asking that question, we may soon be asking another one, one we heard when scandal shook this country in years passed: What did he know and when did he know it? It is a simple question that follows the money because the American people have a right to know who is writing the checks.

Under the bill any covered organization, including corporations, labor unions, nonprofit organizations, and super PACs that spend $10,000 or more on campaign-related disbursements during an election cycle, would have to file a report with the Federal Election Commission that discloses all donations above $10,000.

It also requires the disclosure of any transfer made to a third party for the purposes of campaign-related expenditures. This addresses the growing problem of using so-called social welfare organizations to funnel anonymous money to super PACs.

This is a practical, sensible measure. It doesn't get money out of our elections, but it does shine a light into the dark corners of the campaign finance system. A similar bill in the last Congress had broad bipartisan support, with 59 votes in the Senate and passing the House. Since then we have all watched a flood of money raining down during this election year. We are seeing the real impact of the Citizens United and SpeechNow decisions on our elections. The need for this legislation has become even more apparent.

I serve on the Senate Rules Committee, and in March Chairman Schumer held a hearing on the DISCLOSE Act. We heard several concerns about the bill, both from our Republican colleagues on the committee and their witness. At the hearing, the minority witness claimed there were many provisions in the bill he disliked. He said:

I think perhaps the most radical is the government-mandated disclaimer.

While I disagree with his assertion that standing by your ad is a radical idea, that is no longer an issue in this bill. We have taken the disclaimer provision out. I still believe it is an important provision, but we listened to the minority's concerns and revised the bill.

Another concern raised at the hearing was the effective date of the legislation. Senator Alexander is our ranking member on the committee, and I think a great deal of him and appreciate the work he and Chairman Schumer have done on this and many other issues. At the hearing on DISCLOSE, Senator Alexander said the following:

This hearing is as predictable as the spring flowers in the middle of an election. My friends on the other side of the aisle are trying to change the campaign finance laws to discourage contributions from people with whom they disagree, all to take effect on July 1, 2012.

Well, guess what, Senator Alexander. We have also addressed this concern. The bill has been changed so that the disclosure requirements go into effect at the beginning of next year. So the shadow groups can still do everything in their power to buy this election. They can still hide their faces from the voters, but they will have to step to the plate the next time around. They can still write the checks, they can still try to buy future elections, but they will finally have to say who they are at the checkout stand.

The bill we are considering is as simple and straightforward as it gets: If you are making large donations to influence an election, the voters in that election should know who you are. That is not a radical concept.

What is disappointing is that this type of disclosure, and campaign finance reform more generally, used to have broad bipartisan support. Now that conservative super PACs are raising huge sums of cash and hiding many of their donors, disclosure has suddenly become another partisan issue.

If we look at past reform efforts, they have always been bipartisan. In 1972, the Federal Election Campaign Act passed with strong bipartisan support from both parties. After Watergate, Democrats and Republicans came together, again to strengthen the act and set limits on independent expenditures. More recently, in 2002, we passed the bipartisan Campaign Reform Act, also known as McCain-Feingold. That bill passed in the Senate with broad support. Five of our current Republican colleagues voted for it.

The constitutional amendment that Senator Bennet and I introduced this Congress also used to be bipartisan.

Senator Fritz Hollings was the lead sponsor for many years, but the amendment was always bipartisan. It had the support of respected Republican Senators such as Ted Stevens, Arlen Specter, John Danforth, Thad Cochran, and John McCain.


Mr. UDALL of New Mexico. So we can see why I am disappointed with the partisanship that has taken over this important issue. It is not like the problem of money influencing our elections has been solved. The recent Supreme Court decision struck down laws my Republican colleagues voted for. I hope they will be willing to work with us now to pass disclosure laws that will withstand judicial scrutiny.

And unless we take action, I fear things will only get worse. Earlier this year, my friend Senator John McCain said the following at a panel discussion on campaign finance reform:

What the Supreme Court did [in Citizens United] is a combination of arrogance, naiveté and stupidity the likes of which I have never seen. I promise you, there will be huge scandals because there's too much money washing around, too much of it we don't know who's behind it and too much corruption associated with that kind of money.

I think Senator McCain is right. I recall the debate when we considered the DISCLOSE Act in the last Congress. Many of our concerns then were still hypothetical. We could only guess how bad it might get. Well, now we know. Unfortunately, our worst fears have come true.

The toxic effect of the Citizens United and SpeechNow decisions has become brutally clear. The floodgates of campaign spending are open and gushing and threaten to drown out the voices of ordinary citizens.

Look at what we have seen already. Huge sums of unregulated, unaccountable money are flooding the airwaves. An endless wave of attack ads, paid for by billionaires, is poisoning our political discourse 501c4 social welfare organizations are abusing their non-profit status. They shield their donors and then funnel the money into Super PACs.

The American public, rightly so, looks on in disgust.

A recent Washington Post-ABC News poll found that nearly 70% of registered voters would like Super PACs to be illegal. Among independent voters, that figure rose to 78%. Supporters of Super PACs and unlimited campaign spending claim they are promoting the democratic process. But the public knows better--wealthy individuals and special interests are buying our elections.

Our nation cannot afford a system that says, ``come on in'' to the rich and powerful, but then says ``don't bother'' to everyone else.

The faith of the American people in their electoral system is shaken by big money. It is time to restore that faith. It is time for Congress to take back control.

There is a great deal to be done to fix our campaign finance system. I will continue to push for a constitutional amendment that will allow comprehensive reform. But, in the interim, let's at least shine a light on the money. The American people deserve to know where this money is coming from. And they deserve to know before, not after, they head to the polls. That is what the DISCLOSE Act will achieve.

With that, I yield the floor.


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