July 16, 2012

FLOOR SPEECH ON S. 3369, DISCLOSE ACT

Mr. CARDIN. Mr. President, I wish to thank Senator Lautenberg.  I was listening to Senator Mikulski and Senator Bingaman on their comments to try to bring some common sense to our election laws by basically disclosing who contributes to the political process. That is something Republicans and Democrats have been together on for a long time. I don't know what happened. This seems to be an issue that doesn't get bipartisan support.

   I particularly wish to thank Senator Whitehouse for his leadership on this issue. He has been talking about this matter of DISCLOSE, along with Senator Schumer, since the Supreme Court decision in 2010 with the Citizens United decision.

   I must say that I think the Citizens United decision will go down as one of the worst decisions in the history of the Supreme Court of the United States. I say that for many reasons. First and foremost, those who are students of our judicial system and our constitutional separation of powers will understand that the case that went up to the Supreme Court was a pretty narrow case based upon a 30-minute documentary. In that decision of Citizens United, the Court ruled in a very broad way that a corporation has all the rights of an individual in our political system. It is the first time that has happened. It reversed the legislation that had been passed by Congress.

   The Framers of our Constitution envisioned that it was the legislative branch of government that would make our laws and policies. The legislature, after a great deal of debate and after many different attempts, passed laws that restricted how much money corporations could put in our political system and how they had to do it in a very open and transparent manner. Then we had a reform bill known as the McCain-Feingold bill that spelled out certain restrictions. All of these cases and laws have been upheld over a long period of time by court decisions.

   In Citizens United, the Court not only substituted itself for the legislature but reversed its own precedent in ruling that corporations could literally put an unlimited amount of money into our political system. As I said, I think it was one of the worst decisions in the history of the Supreme Court. It has now unleashed unlimited money in our political system. What corporations and undisclosed sources can now put into our elections will dwarf what individual contributors will make available in the political season.

   The Center for Responsive Politics has now said that super PACs and their related organizations have already spent over twice what similar groups spent 4 years ago. We not only have this unleashing of undisclosed corporate funds, we are now seeing the super PACs taking over as the major source of funding of campaigns.

   As Senator Mikulski just said on the Senate floor, if we run for office and solicit contributions, every one of those contributors is listed on our reports. We make quarterly reports so that the people of the Nation know who is financing our campaigns. They will not know who is financing these ads that are going to appear on television from these Citizens United-type political activities where we don't know where the money is coming from. It could come from a single source who wishes to influence our political system but does not want to be identified in the cause. I really think this compromises our democratic system. I think an individual could literally distort our political system through the use of money, and that is something I hope all of us would be concerned about.

   I am now a believer. I think the only thing we can do to overturn the Citizens United case is to support Senator Tom Udall's constitutional amendment. That amendment gives the Congress the power we thought we had to legislate.

   I think the people of Maryland, West Virginia, and our Nation would be surprised to learn that we cannot legislate the limits of what people can contribute in campaigns. They think that is our responsibility, not the Court's. Well, Senator Tom Udall's amendment would give us the power to do that and overturn the Citizens United case. I hope we could come together to let us have the power we should have. It seems to me that is something both Democrats and Republicans in this body should agree on, that those decisions should be made in the Congress of the United States and not in the Supreme Court or the courts of our land.

   The bill we have before us--and I urge my colleagues to let us move forward to the DISCLOSE Act--brings transparency into the campaign finance system. Many of us frequently talk about transparency. Transparency is the most important part of integrity in our system. We talk about a lot of other countries adding transparency to the way they do business. Well, we should have transparency in one of the most fundamental parts of our system, and that is how we conduct our elections. It is key to our democracy.

   It is Justice Brandeis who said that ``sunlight is said to be the best of disinfectants.'' I don't understand why we would resist the public knowing who is contributing money to influence our political system.

   The DISCLOSE Act has the bipartisan support of the League of Women Voters, Democracy 21, and People for the American Way.

   Let me quote from a letter recently sent to Congress by the nonprofit, nonpartisan Campaign Legal Center. It says:

   “Hundreds of millions of dollars will be spent to influence the outcome of the elections over the next four months. Neither the candidates being attacked with these millions of dollars nor the public will have complete, accurate, meaningful information about the sources of such money. Only the contributors and the beneficiaries will be in the know. Passage of S. 3369 will mean that in future election cycles those funding these shadow campaigns will be disclosed to the public so that voters can make informed decisions at the polls.”

   The letter goes on to say:

   “As we get closer to the 2012 elections, the amount of federal campaign-related spending using funds from undisclosed sources continues to rise. Especially troubling is the lack of transparency regarding the expenditures of so-called ``Section 501(c) groups'' this election cycle, such as Priorities USA and Crossroads GPS.”

   I have heard some of my colleagues say: Well, can we constitutionally do this? Is this allowed for us? After all, Citizens United sort of says anything goes. Well, let me quote from the Citizens United decision--and this is very interesting--where the Court wrote:

  “[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 gives proper weight to the different speakers and messages.”

   That is the Supreme Court speaking in Citizens United.

   We clearly have the authority to move at least this modest step forward to allow the American people to see who is making these contributions so they can make an informed judgment on election day. We owe it to the citizens of this country to take up and pass the DISCLOSE Act.

   Once again, I wish to thank my colleague, who is now on the Senate floor, Senator Whitehouse, for his leadership on this issue. As I said earlier, from day one when the Supreme Court issued its decision, it was Senator Whitehouse who immediately observed that we have to do something to make sure that those who use this process to influence our system--that information is disclosed so the public has the information they need in order to properly judge our elections.