Statement Of Senator Patrick Leahy On The Second Anniversary Of The Citizens United Decision

Two years ago, with the stroke of a pen, five Supreme Court justices acted in a case known as Citizens United to overturn a century of law designed to protect our elections from corporate spending.  They ran roughshod over longstanding precedent to strike down key provisions of our bipartisan campaign finance laws, and ruled that corporations are no longer prohibited from direct spending in political campaigns.  I was troubled at the time and remain troubled today that in that case, the Supreme Court extended to corporations the same First Amendment rights in the political process that are guaranteed by the Constitution to individual Americans.

Now, two years later, the American people have seen the sudden and dramatic effects of the Citizens United decision.  The flood of corporate money flowing into campaigns from undisclosed and unaccountable sources has had an enormous influence in the Republican primary elections this year, just as it did in the 2010 mid-term elections.   Instead of hearing the voices of voters, we see a barrage of negative advertisements from so-called Super PACs.   This comes as no surprise to the many of us in Congress and around the country who worried at the time of the Citizens United decision that it turns the idea of government of, by and for the people on its head.  We worried that the decision created new rights for Wall Street at the expense of the people on Main Street.   We worried that powerful corporate megaphones would drown out the voices and interests of individual Americans.  Two years later, it is clear those concerns were justified.

We held a hearing in the Senate Judiciary Committee last year to explore how the Citizens United decision affects the lives of hardworking Americans.  I began that hearing by talking about how our Constitution starts with the words, “We the People of the United States.”  In designing the Constitution, ratifying it, adopting the Bill of Rights and creating our democracy, we spoke of, thought of, and guaranteed, fundamental rights to the American people, not corporations.  

There are reasons for that.  Corporations are not the same as individual Americans.   Corporations do not have the same rights, the same morals or the same interests.  Corporations cannot vote in our democracy.  They are artificial legal constructs to facilitate business.  The Founders understood this.  Americans across the country have long understood this. 

Corporations are not people.  That is common sense rooted in core American values.  Nowhere does our Constitution mention corporations.  The great Chief Justice John Marshall understood this distinction when he wrote in 1819 that, “A corporation is an artificial being . . . the mere creature of law, it possesses only those properties which the charter of its creation confers upon it . . . .” 

The distinction between corporations and people is one that was at the heart of the campaign finance reforms proposed by Teddy Roosevelt more than a century ago limiting the role of corporations in the political process.  Those reforms were preserved and extended through another century of legal developments that followed.  Nine years ago, it was these same values that informed bipartisan efforts in Congress, on behalf of the American people, to enact the landmark McCain-Feingold Act.  That legislation strengthened the laws protecting the interests of all Americans by ensuring a fair electoral process where individual Americans could have a role in the political process, regardless of wealth. 

As I pointed out at our hearing last year, when the Supreme Court first reviewed the constitutionality of the McCain-Feingold Act in 2003, in McConnell v. Federal Election Commission, it upheld the key provisions of the Act against a First Amendment challenge.  Six years later, a thin majority of the Supreme Court, made possible by President Bush’s appointment of Justice Samuel Alito, reversed course on the very same question.  In so doing, the conservative activist majority discarded not only the McConnell decision, but ignored longstanding precedent to effectively redraft our campaign finance laws.  As Justice Stevens noted in dissent: “The only relevant thing that has changed since . . . McConnell is the composition of the Court.”  The Constitution had not changed, but five Justices rewrote it. 

The reason so many Americans continue to recoil from the Citizens United decision two years later is that the brand of conservative judicial activism on display in that decision is a threat to the rule of law and an effective representative democracy.   At the core of the First Amendment is the right of individual Americans to participate in the political process – to speak and, crucially, to be heard.  That is what the campaign finance laws were designed to ensure – that Americans can be heard and fairly participate in elections   Rather than abiding by the limitations that Congress has developed to ensure a multitude of voices in the marketplace of election contests, five justices on the Supreme Court decided that the biggest corporations should be unleashed, and can be the loudest and most dominant, and drown out individual Americans.  They showed no deference to Congress, and little deference to the precedents of the Supreme Court.

The risks we feared at the time of the Citizens United decision, the risks that drove Congress to pass bipartisan laws based on longstanding precedent, have been apparent in the elections since that decision.  Citizens United has opened the floodgates of corporate influence in American elections.  In these tough economic times, I believe individual Americans should not have their voices stifled by unfettered corporate interests.  I remain concerned that this decision will invite foreign corporate influence into our elections. 

Recently, Justice Scalia responded to the criticism of the Citizens United decision and the advent of Super PAC’s and their overwhelming influence by saying that if people don’t like it, they should turn off their televisions.  That response misses the point.  Americans should not be told to tune out from democracy or from considering a fair exchange of ideas.  American voters should be able to speak, be heard and to hear competing voices, not be overwhelmed by corporate influence and driven out of the governing process.  Even some whose response to the Citizens United decision was more muted have turned a corner, and recently, Senator McCain, a lead co-author of the McCain-Feingold Act, conceded that Super PAC’s are “disgraceful.”  They allow nothing more than to have corporations or wealthy individuals dominate and control local elections.

We have tried to curtail some of the worst abuses allowed by the Supreme Court’s decision, but Senate Republicans have blocked those efforts.  In 2010, Senate Republicans filibustered the DISCLOSE Act, preventing the Senate from even debating the measure, let alone having an up-or-down vote in the Senate.   The DISCLOSE act would have added transparency to the campaign finance laws to help prevent corporations from abusing their newfound constitutional rights.  It would have preserved the voices of hardworking Americans in the political process by limiting the ability of foreign corporations to influence American elections, prohibiting corporations receiving taxpayer money from contributing to elections, and increasing disclosure requirements on corporate contributors, among other things.    

By preventing us from even debating the DISCLOSE Act, Senate Republicans ensured the ability of wealthy corporations to dominate all mediums of advertising and out the voices of individuals, as we have seen and will continue to see in our elections.

We continue to try to fight the effects of corporate influence unleashed by Citizens United.  We have introduced the Fair Elections Now Act, to establish a voluntary program for viable congressional candidates to accept Federal grants, matching funds, and vouchers to supplement money from small dollar donors.  Rather than fundraising, this legislation will enable incumbent candidates more time to better represent their constituents, and it will level the playing field to give challengers the chance to better compete with established candidates without relying on wealthy donors to fund their entire campaign.  The Fair Elections Now Act represents one important step toward minimizing corporate influence in the electoral process, and ensuring that candidates for Congress are neither beholden to corporate influence, nor so consumed with fundraising that they do not have the time necessary to legislate.   I hope that Senators on both sides of the aisle will work to enact this important measure.

We continue to work to protect shareholders of publicly held corporations from having their money spent on political activity without their consent, another consequence of the Citizens United decision.  I am a cosponsor of the Shareholder Protection Act, which would require shareholder authorization and full disclosure of any political spending by publicly held corporations.   Last week, I joined with 14 other Democratic Senators in sending a letter to the Securities and Exchange Commission (SEC) urging it to consider using its authority to immediately implement part of this legislation requiring full disclosure of corporate political spending.   Such an action is within the SEC’s power to do today.  This information is not only material to shareholders, but it is something shareholders continue to request from corporations.  As we wrote last week, a corporation’s money belongs to the shareholders, not the executives, and they deserve a voice I how it is spent.

Vermont is a small state.  It is easy to imagine the wave of corporate money we are seeing spent on elections around the country lead to corporate interests flooding the airwaves with election ads, and transforming even local elections there or in other small states.  It would not take more than a tiny fraction of corporate money to outspend all of our local candidates combined.  If a local city council or zoning board is considering an issue of corporate interest, why would the corporate interests not try to drown out the view of Vermont’s hardworking citizens?  I know that the people of Vermont, like all Americans, take seriously their civic duty to choose wisely on Election Day.  Vermonters cherish their critical role in the democratic process and are staunch believers in the First Amendment.  Vermont refused to ratify the Constitution until the adoption of the Bill of Rights in 1791.   The rights of Vermonters and all Americans to speak to each other and to be heard should not be undercut by corporate spending. 

When the Citizens United decision was handed down, I said that it was the most partisan decision since Bush v. Gore.  As in Bush v. Gore, the conservative activists on the Supreme Court unnecessarily went beyond the proper judicial role to substitute their preferences for the law.  But Citizens United is broader and more damaging, because rather than intervening to decide a single election, we have seen the Court’s intervention affecting all elections.  On the two year anniversary of Citizens United, I call on all Senators, Republican or Democratic, to come together to restore the ability of every American to be heard and participate in free and fair elections. 

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