S. HRG. 112–863

TAKING BACK OUR DEMOCRACY: RESPONDINGTO CITIZENS UNITED AND THE RISE OF SUPERPACS

HEARINGBEFORE THE

SUBCOMMITTEE ON CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTSOF THECOMMITTEE ON THE JUDICIARYUNITED STATES SENATEONE HUNDRED TWELFTH CONGRESSFIRST SESSIONJULY 24, 2012

Serial No. J–112–89
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COMMITTEE ON THE JUDICIARYPATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin
CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California
ORRIN G. HATCH, Utah
CHUCK SCHUMER, New YorkJON KYL, Arizona
DICK DURBIN, Illinois
JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island
LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota
JOHN CORNYN, Texas
AL FRANKEN, Minnesota
MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware
TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
BRUCE A. COHEN, Chief Counsel and Staff Director
KOLAN DAVIS, Republican Chief Counsel and Staff Director

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN
RIGHTSDICK DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont
LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island
JON KYL, Arizona
AL FRANKEN, Minnesota
JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware
MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut
TOM COBURN, Oklahoma
JOSEPH ZOGBY, Democratic Chief Counsel and Staff Director
WALT KUHN, Republican Chief Counsel(II)

CONTENTS
STATEMENTS OF COMMITTEE MEMBERS
Page

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois ..............................
prepared statement ..........................................................................................
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont ....................
prepared statement ..........................................................................................

1
40
6
43

WITNESSES
Witness List .............................................................................................................
Baucus, Hon. Max, a U.S. Senator from the State of Montana ...........................
prepared statement ..........................................................................................
Sanders, Hon. Bernard, a U.S. Senator from the State of Vermont ...................
prepared statement ..........................................................................................
Udall, Hon. Tom, a U.S. Senator from the New Mexico .......................................
prepared statement ..........................................................................................
Edwards, Hon. Donna, a Representative in Congress from the State of Maryland ........................................................................................................................
Roemer, Hon. Charles ‘‘Buddy’’, former Congressman and former Governor,
State of Louisiana, Baton Rouge, Louisiana ......................................................
prepared statement ..........................................................................................
Shapiro, Ilya, Senior Fellow in Constitutional Studies, Cato Institute, Washington, DC .............................................................................................................
prepared statement ..........................................................................................
Lessig, Lawrence, Roy L. Furman Professor of Law and Leadership, Harvard
Law School, Cambridge, Massachusetts ............................................................
prepared statement ..........................................................................................

39
4
46
7
50
9
57
11
14
61
15
66
18
70

SUBMISSIONS FOR THE RECORD
American Civil Liberties Union (ACLU), Laura W. Murphy, Director, Washington Legislative Office, Michael W. Macleod-Ball, Chief of Staff/First
Amendment Counsel, and Gabriel Rottman, Legislative Counsel/Policy Advisor, July 24, 2012, joint letter ..........................................................................
American Sustainable Business Council, David Levine, Chief Executive Officeand Co-Founder, Washington, DC, July 23, 2012, letter ..................................
Americans for Campaign Reform, Concord, New Hampshire, statement ...........
Ben & Jerry’s Homemade, Inc, Jostein Solheim, Chief Executive Officer,
South Burlington, Vermont, July 11, 2012, letter .............................................
Center for Competitive Politics, Alexandria, Virginia, statement .......................
Center for Media and Democracy, Lisa Graves, Executive Director, andBrendan Fischer, Staff Counsel, Madison, Wisconsin; article ‘‘Super PACs
and Beyond.’’ .........................................................................................................
Beyond Super PACs, article ....................................................................................
Common Cause, Bob Edgar, President and Chief Executive Office, Washington, DC, statement ..........................................................................................
Demos Ideas & Action, Adam Lioz, Counsel, New York, New York, statement
Free Speech for People, Jeffrey D. Clements, Co-Founder and President,
Amherst, Massachusetts, statement ...................................................................
Heagarty, Chris, former North Carolina State Representative, Law Officesof Chris Heagarty, PLLC, Raleigh, North Carolina, statement .......................
Hubbard, Rick, MBA, JC, South Burlington, Vermont, July 13, 2012, letter ....
Lessig, Lawrence, Roy L. Furman Professor of Law and Leadership, Harvard
Law School, Cambridge, Massachusetts, attachment .......................................
(III)

111
120
123
126
129
138
145
152
160
170
187
194
198

IV
Page

Move to Amend, Salt Lake City, Utah, July 18, 2012, letter ...............................
People for the American Way, Michael B. Keegan, President, Washington,
DC, July 24, 2012, letter .....................................................................................
Public Campaign’s, Washington, DC, statement ..................................................
Washington Public Campaigns, John E. King, President, Seattle, Washington,
statement ..............................................................................................................

202
222
241
245

ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature, preiously
printed by an agency of the Federal government or other criteria determined by the Committee: ....................................................................................

247

Torres-Spelliscy, Ciara, Assistant Professor of Law, Stetson Law, Tampa,
Florida, Part 1, see link: http://papers.ssrn.com/sol3/papers.cfm?abstract—
id=2046832. ..........................................................................................................

247

TAKING BACK OUR DEMOCRACY: RESPONDING TO CITIZENS UNITED AND THE RISE OF
SUPER PACSTUESDAY, JULY 24, 2012

U.S. SENATE,SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND HUMAN RIGHTS,
Committee on the Judiciary,
WASHINGTON, DC.
The Subcommittee met, pursuant to notice, at 2:34 p.m., in Room
SH–216, Hart Senate Office Building, Hon. Richard J. Durbin,
Chairman of the Subcommittee, presiding.
Present: Senators Durbin, Leahy, Whitehouse, Klobuchar, Coons,and Blumenthal.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S.
SENATOR FROM THE STATE OF ILLINOIS

Chairman DURBIN. This hearing of the U.S. Senate Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights
will come to order. It is entitled, ‘‘Taking Back our Democracy: Responding to Citizens United and the Rise of Super PACs.’’ I welcome those who have joined us in the hearing room, those watching
live online, and those following the hearing on social media using
the hashtag Citizens United. Someday I will understand what I
just said.
[Laughter.]
Chairman DURBIN. This is the second hearing that this Committee has held on the impact of Citizens United, and after my
opening statement, I am going to recognize Senator Graham, theRanking Member, and Senator Leahy, Chairman of the Full Committee.
Today we will examine the dramatic rise in spending by Super
PACs that are largely funded by corporations and wealthy individuals. We will also consider proposed legislation and constitutional
amendments to stem this tide.
Since the Supreme Court’s decisions in Citizens United andSpeechNow, a later decision by the D.C. Court of Appeals, we havewitnessed the rapid rise of Super PACs and the unprecedented influence by corporations and wealthy individuals seeking to advancetheir political agenda.
In 2006, outside groups spent $70 million to influence the Federal midterm election. Four years later, it was up to $294 million,
more than four times the amount. That is four times the amount(1)

2
since 2006, and by all accounts they are going to break all records
this Presidential election year.
Ordinary Americans often have no idea who is bankrolling theomnipresent political advertising. In 2006, secret donors made up
one percent of all outside spending—one percent. Four years later,
after Citizens United and the rise of Super PACs, secret donors
rocketed to 44 percent of outside spending. Studies show that as
the amount of money floating campaigns increases, disclosure andtransparency decline. In a democracy that values openness andvoter participation, the voters ought to know who is paying for theads. We should call them not ‘‘Super PACs’’ but ‘‘Super Secret
PACs’’ because the reality is the public has shockingly little information about them.
The little that we have been able to learn has identified somemajor donors. Half of all Super PAC money being spent in the
Presidential election is coming from 22 people: millionaires and billionaires who are buying their way in.
To be clear, I do not begrudge them any business success. They
have a right to be heard. However, they do not have a right to be
the only voice heard. Just because wealthy donors that are behind
the Super PACs have achieved economic success does not mean
they have earned the right to buy or control our political agenda.
Sadly, it appears that is happening.
According to a recent report on campaign elections, Super PACs
threatened to purchase every last minute of available television advertising space for the fall election, exponentially driving up thecost of these ads, especially in battleground States. As a result, a
voter may never hear directly from State and local candidates. I
thought Citizens United was about giving the voters more information. These candidates can be kept off the air entirely due to therising cost and fact that they are not entitled to reasonable accessto the air waves like Federal candidates.
There are 314 million people in this country whose lives, jobs,
safety, and health are impacted by decisions made by elected officials. Can we still proclaim to be the world’s model for free elections with open debate when we allow 22 wealthy people to control
the terms of that debate and silence the voices of others? The public may not know the agendas of those who are buying these ads,
but I can assure you that the politicians they have supported will
once they begin calling after the election.
There is a series of legislative proposals that would stem thisdangerous tide of secret special interest money that is flowing into
our elections. I have introduced Fair Elections Now. It would createa public financing system that will free candidates from the dangerous reliance on Super PACs once and for all. Under Fair Elections, viable candidates who qualify for the program would raise amaximum of $100 from any single donor. The candidates would
then receive matching funds and grants sufficient to run a competitive campaign. It is a totally different approach. It really meansthat we would have campaigns more substantive, maybe shorter,
maybe some real debates. Sound interesting?
Fair Elections would fundamentally reform our broken systemand put the average citizen back in control. Last week, the Senate
voted on the DISCLOSE Act, a simple proposition. Who is paying

3for these ads? A majority of the Senate, including every Democratic
Member of this Committee, voted to support the measure. I wantto thank Senator Whitehouse, who is a Member of the Committee,
for his leadership. The bill is simple. It requires Super PACs andother big spenders to disclose all donors who give $10,000 or more.
In other words, it would write into law the same basic concept of
disclosure that the Supreme Court says it endorsed in Citizens
United.
Congress could pass these two bills right now and make a worldof difference. But with a Supreme Court that has not been shy
about overturning precedent and disregarding congressional intent,passing these pieces of legislation may not be enough. After muchdeliberation, I have, with some hesitation, reached the conclusionthat a constitutional amendment is necessary to clean up our campaign finance system once and for all. I have been reluctant tosponsor constitutional amendments. Some of my colleagues sponsor
a lot of them. I think you ought to be careful not to take a roller
to a Rembrandt, and I have tried to wait for those moments in history where I thought it was necessary. I think this is one of thosemoments.
Slavery and the denial of basic freedom of Americans was thelaw of the land before and after Dred Scott, but many fought, bled,and died so that the 14th, 15th, and 16th Amendments would ensure that America lived up to its promise of equality. Those whofought for women’s suffrage for decades were discouraged by theSupreme Court’s ruling in Minor v. Happersett, but years of activism were rewarded when the 19th Amendment was passed.
The Supreme Court’s decision in Breedlove v. Suttles affirmed theimposition of poll taxes that prevented many African Americans
and poor from voting. Those fighting for equal ballot access rallied
to pass the 24th Amendment, and their victory was completed
when State poll taxes were invalidated by Harper v. Board of Elections.
So it is an uphill battle, and it may take years, but the passageof these five amendments remind us that grassroots movement can
put our country back on the right course after a Supreme Court decision like Citizens United gets it dead wrong. That grassroots
movement is well underway. Stacked over there in the corner are
1,959,063 petition signatures from Americans across the Nation
representing every State in the Union in support of a constitutional
amendment to stop the negative influence of secret money from
special interest groups and individuals.
Today we are going to hear testimony from some of my colleagues who have responded to this call by coming up with theirown approaches, constitutional amendments. I am looking forward
to their testimony. I am going to yield the floor when Senator
Graham arrives so that he can speak, and the same for Senator
Leahy.
The first panel is seated. There have been 13 constitutional
amendments introduced in the House and Senate, and my colleagues have taken many different approaches, but are all united
in the belief that Citizens United and its progeny are bad for America. I am pleased to be joined today by some of the Members who
have taken a leadership role.

4First, Senator Max Baucus, senior Senator from the State ofMontana, Chairman of the Senate Finance Committee. In Januaryof this year, Senator Baucus introduced his constitutional amendment, Senate Joint Resolution 35. His presence here today is particularly timely since just a few weeks ago, the Supreme Court
struck down Montana’s century-old ban on corporate political contributions in State elections.
Senator Baucus, the floor is yours.
STATEMENT OF THE HONORABLE MAX BAUCUS, A UNITEDSTATES SENATOR FROM THE STATE OF MONTANA

Senator BAUCUS. Thank you, Mr. Chairman.
President Franklin Delano Roosevelt once said, ‘‘The ultimate
rulers of our democracy are not a President and Senators and Congressmen and government officials, but the voters of this country.’’
People in charge, we are just hired hands. We have got lots ofgreat players back in our home States. We are the employees, and
it is the people in our States that decide who they are going toelect, unelect, and give us direction as to what they think weshould do.
I sit before you today on behalf of those voters—in my State,nearly one million Montanans, those are the folks that I work for,as well as over 1.7 million Americans we all serve who have signed
those petitions over there that you referred to. They have signedthat petition calling for a constitutional amendment, some kind ofamendment that this Committee is now considering at this moment.
That is 1.7 million signatures. Those are mothers, fathers, employers, veterans, school teachers. They are Americans that wewere sent here to serve.
I must say, as a Montanan, this issue is deeply personal to me,
and let me tell you why.
At the top of our State Capitol building in Helena, Montana, sitsa beautiful copper dome. Nearly a century ago, this copper dome
was not just for decoration. It was a symbol of what we call in
Montana and other parts of the country, the symbol of the ‘‘copperbarons.’’ Now, who are they? They are the three major folks, extremely wealthy, who fought for and controlled the production ofcopper in Butte, Montana. Butte, Montana, is known as the richest
hill on earth. One of them was a fellow named William Clark. William Clark is the largest benefactor to the Corcoran Gallery herein Washington, D.C. In today’s dollars, he would rival Warren
Buffett or Bill Gates. He was that wealthy.
While miners were working underground, what was William
Clark doing? William Clark was buying elections with his money.
In fact, it was common for corporations in our State, and probably
other States, to buy elections with their money.
Remember, back then we were elected by State legislatures, notby the people. Legislatures decided who was going to serve in the
U.S. Senate.
In 1899, William Clark bribed the Montana State Legislature
into appointing him to serve here in the U.S. Senate. Well, theRules Committee had the goods on him because he actuallythrew—or his people did—bundles of dollars over the transom in5hotels where the State legislators were staying, passing laws in theState of Montana. In fact, he is quoted as saying, ‘‘I never boughta man who was not for sale.’’The Rules Committee sat down and met. What would they dowith this guy, William Clark, who had clearly bribed his way to the
U.S. Senate?
Well, William Clark was no dummy. While the Rules Committee
was meeting, and they had the goods on him—this is back around
1900—what did he do? He used his money to do something pretty
clever. He arranged to have the Governor of the State of Montana
leave Montana and go to San Francisco. He bought him off. And
then he, William Clark, resigned. He resigned his position in the
U.S. Senate and arranged to have the Lieutenant Governor, thenActing Governor, appoint him to the U.S. Senate, and that is how
William Clark became a Senator. He bought his way into the U.S.
Senate.
That led to the 17th Amendment. That incident and the scandal
in Montana led to the passage of the 17th Amendment. And Montana also responded by passing laws prohibiting corporations fromcontributing to elections. We were so outraged with what William
Clark and his people did in the State of Montana. And as you said,
Citizens United overturned that and made it impossible for Montana to enforce this law that was deeply embedded in our culture,and the recent decision by the Court in the aftermath of Citizens
United made that very clear. We in Montana cannot proceed.
So I believe, as you believe, that the solution here is a constitutional amendment. That is about the only way we can solve this,to restore power and put power back in the hands of the people,
not in the hands of the corporations like William Clark exercisedback then.
There was a 2012 poll which says that 63 percent of Americans
believe that corporations and unions should not be able to spend
unlimited amounts of dollars in elections. And the people we workfor, at least in my State, and I think across the country, agree.
Again, the surest way to get at the heart of the matter, I think,
is a constitutional amendment.
In the Federalist Papers, James Madison noted that there would
be circumstances when ‘‘useful alterations [to the Constitution] will
be suggested by experience.’’
Still this is a process that requires significant deliberation. Itshould. As you have said, Mr. Chairman, you do not just amend theconstitution lightly. And I do not take a proposal to amend theConstitution lightly at all. And I agree with James Madison that
we should amend the Constitution only on ‘‘great and extraordinary occasions.’’
This is one of those occasions, as you said just a few minutes ago.
And Congress, I think, owes it to the American people to fully
study, discuss, and debate the merits of an amendment.
My proposal—and there are many here—would right the wrongof Citizens United, simply overturn it. It would restore Congress’
and States’ ability to regulate political spending by corporations
and labor in elections and then give people in States like Montana
and other States the power to once again say, ‘‘We are not for sale.’’6
It is clear to me that action is needed to restore Americans’ faithin our political and electoral process, and I urge my colleagues tojoin me in supporting this amendment.
[The prepared statement of Senator Baucus appears as a submission for the record.]
Chairman DURBIN. Thanks a lot, Senator Baucus. I appreciate
your testimony, and we would love to have you stay, but if you
have other things calling you in the Senate Finance Committee andother places, you are welcome to leave.
Senator BAUCUS. Thank you.
Chairman DURBIN. Ordinarily I would then recognize Senator
Sanders, but it turns out the senior Senator from Vermont showed
up, and he is Chairman of the Committee, and I hope, Senator
Sanders, that you will give us a chance here for Senator Leahy to
say a word or two in opening, and then I will recognize you next.
Senator Leahy.
STATEMENT OF THE HONORABLE PATRICK J. LEAHY, A
UNITED STATES SENATOR FROM THE STATE OF VERMONT

Chairman LEAHY. Thank you, Chairman Durbin.
Listening to our friend Senator Baucus and watching what has
happened on television or watching elections the last two and ahalf years, we have seen the corrosive effects of the Supreme
Court’s decision in Citizens United. It is really hard to think of any
Supreme Court decision that has had such a negative impact on
our political process.
Nobody who has heard the barrage of negative ads from always
undisclosed and, even worse, unaccountable sources can deny the
impact of Citizens United. Nobody who has strained to hear thevoices of the voters lost among the noise from Super PACs candeny that by extending First Amendment ‘‘rights’’ in the politicalprocess to corporations, five Justices put at risk the rights of individual Americans to speak to each other and, crucially, to be heard.
The idea that a corporation is a person is as crazy as saying, ‘‘We
elected General Eisenhower President, then why can’t we electGeneral Motors President? ’’ It makes no sense.
But those same five Justices doubled down, as Senator Baucus
would agree, when they summarily struck down the 100-year-old
Montana law.
These Supreme Court decisions go against all kinds of longstanding laws and legal precedents, but also against common sense
and against the people. Corporations are not people. 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 meant to facilitate business. Now, the Founders of
this country knew that. Vermonters and Americans across ourcountry have long understood this. Five members of the Supreme
Court apparently do not.
Like most Vermonters, I believe that this is a harmful decisionthat needs to be fixed. I have sought legislative remedies, of course,
because that would be quicker, although I believe constitutional
remedies have to be considered. That is why I held the very first
congressional hearing on that terrible decision after it was issued.
I worked with Senator Whitehouse, Senator Schumer, and others

7
to amend the DISCLOSE Act, bring forth the DISCLOSE Act that
could at least cut out some of the worst parts of Citizens United.
I have worked with Senator Durbin, the Chairman of this Subcommittee, to schedule today’s hearing. And, Senator Durbin, I do
thank you for holding this hearing. It is extremely important. He
has been not only a leader on this, but he has been a leader in
shedding light on the effort in so many States to deny millions ofAmericans access to the ballot box through voter purges and voter
ID laws. It is amazing to find people trying to cut out the right tovote for individual Americans. They are saying we are going to cut
out the right for individual Americans to vote, but we are going togive unlimited power for corporations to involve themselves in secret spending to change the outcome of our elections. We have towork to restore the right balance in our democracy to protect theform of government Americans have fought and died for, what
President Lincoln called our government of, by, and for the people.
The last 236 years have been one toward greater inclusion andparticipation by all Americans. That is not what is happening here.
I will put my full statement, Mr. Chairman, in the record, but
I look at a little State like mine, a tiny fraction of the corporate
money being spent could overwhelm us in our State. That is why
more than 60 Vermont towns passed resolutions on Town Meeting
Day calling for action to address Citizens United.
[The prepared statement of Chairman Leahy appears as a submission for the record.]
Chairman LEAHY. Also, Mr. Chairman, I would ask consent thata statement by a Vermonter, Rick Hubbard of South Burlington, be
included in the record.
Chairman DURBIN. Without objection.
[The prepared statement of Mr. Hubbard appears as a submission for the record.]
Chairman DURBIN. Thank you very much, Senator Leahy.
Let me now recognize Senator Sanders, the junior Senator from
Vermont. He has introduced Senate Joint Resolution 33 in an effort
to respond to Citizens United and related cases. Senator Sanders
enjoys a larger grassroots following than probably any other Senator, and we know that he is frequently in touch with people who
are following this issue very carefully.
Senator Sanders, please proceed.
STATEMENT OF THE HONORABLE BERNARD SANDERS, A
UNITED STATES SENATOR FROM THE STATE OF VERMONT

Senator SANDERS. Thank you very much for convening this enormously important hearing, and thank you for your very strong
opening remarks. And I thank Senator Leahy as well for his strong
statement.
Mr. Chairman, as you have indicated a moment ago, the historyof our country has been to drive toward a more and more inclusive
democracy—a democracy which would fulfill Abraham Lincoln’sbeautiful phraseology at Gettysburg when he talked about ‘‘a Nation of the people, by the people, and for the people.’’We all know that American democracy has not always lived up
to this ideal. When this country was founded, only white male

8
property owners over age 21 could vote, but people fought tochange that, and we became a more inclusive democracy.
After the Civil War, we amended the Constitution to allow nonwhite men to vote. We became a more inclusive democracy.
In 1920, after years of struggle and against enormous opposition,
we finally ratified the 19th Amendment guaranteeing women theright to vote. We became a more inclusive democracy.
In 1965, under the leadership of Martin Luther King, Jr., andother great heroes, the civil rights movement finally succeeded inoutlawing racism at the ballot box, and LBJ signed the Voting
Rights Act. We became a more inclusive democracy.
One year after that, the Supreme Court ruled that the poll tax
was unconstitutional, that people could not be denied the right tovote because they were low income. We became a more inclusive
democracy.
In 1971, young people throughout the country were saying, ‘‘We
are being drafted to go to Vietnam and get killed, but we are 18
and we do not have the right to vote.’’ We passed a constitutional
amendment. The voting age was lowered to 18. We became a more
inclusive democracy.
Mr. Chairman, the democratic foundations of our country andthis movement toward a more inclusive democracy are now facing
the most severe attacks, both economically and politically, that wehave seen in the modern history of the United States. Tragically—
and I say these words advisedly—we are well on our way to seeing
our great country move toward an oligarchic form of government
where virtually all economic and political power rests with a handful of very wealthy families. Citizens United is a part of that process, and that is a trend we must reverse.
Economically, the United States today has by far the most unequal distribution of wealth and income of any major country onearth, and that inequality is worse today than it was at any timesince the late 1920s. One family, the Walton family of Wal-Mart
fame, owns more wealth than the bottom 40 percent of the American people. The bottom 60 percent own less than two percent of
the wealth. The top one percent owns 40 percent of the wealth.
Now, that is what is going on economically in this country. A
handful of billionaires own a significant part of the wealth of America and have enormous control over our economy.
What the Supreme Court did in Citizens United is say to thesesame billionaires, ‘‘You own and control the economy. You own
Wall Street, you own the coal companies, you own the oil companies. Now for a very small percentage of your wealth, we are goingto give you the opportunity to own the U.S. Government.’’ That isthe essence of what Citizens United is all about, and that is why
it must be overturned.
Let us be clear. Why should we be surprised that one family
worth $50 billion is prepared to spend $400 million in this election
to protect their interests? That is a small investment for them anda good investment. But it is not just the Koch brothers.
Mr. Chairman, there are at least 23 billionaire families who havecontributed a minimum of $250,000 each into the political process
up to now during this campaign, and my guess is that number isreally much greater because many of these contributions are made

9in secret. In other words, not content to own our economy, the one
percent want to own our government as well.
The constitutional amendment that Congressman Ted Deutch
and I have introduced states the following: ‘‘For-profit corporations
are not people and are not entitled to any rights under the Constitution. For-profit corporations are entities of the States and are
subject to regulation by the legislatures of the States so long as theregulations do not limit the freedom of the press. For-profit corporations are prohibited from making contributions or expenditures
into political campaigns. Congress and the States have the right toregulate and limit all political expenditures and contributions, including those made by a candidate.’’I am proud to say that the American people are making their
voices heard on this issue. You have close to two million signatures
right there on a petition. In my State of Vermont, we have seen
dozens and dozens of towns go on record as saying they support a
constitutional amendment, and we have six States having done thesame.
You have some very good amendments here with Senator Baucus, Senator Udall, and Congresswoman Edwards. I hope we moveon this issue because the future of American democracy is at stake.
Thank you very much.
[The prepared statement of Senator Sanders appears as a submission for the record.]
Chairman DURBIN. Thanks, Senator Sanders.
Senator Tom Udall is the junior Senator from New Mexico andoffered one of the first amendments in the Senate on this subject.
We are glad you are here today, and the floor is yours.
STATEMENT OF THE HONORABLE TOM UDALL, A UNITEDSTATES SENATOR FROM THE STATE OF NEW MEXICO

Senator UDALL. Thank you, and good afternoon, Chairman Durbin, Chairman Leahy, and Senator Coons.
In January 2010, the Supreme Court issued its opinion in Citizens United v. FEC. Two months later, the D.C. Circuit Court ofAppeals decided SpeechNow v. FEC. These two cases opened thedoor to Super PACs. Millions of dollars now pour into negative andmisleading campaign ads. This is poisoning our democracy, andoften we do not even know who is doing the poisoning.
Our campaign finance system was in trouble before these opinions. We have been on this dangerous path for a long time. The
Citizens United and SpeechNow decisions just picked up the pace,but the Court laid the groundwork many years ago.
We can go all the way back to 1976. That year, the Court held
in Buckley v. Valeo that restricting independent campaign expenditures violates the First Amendment right to free speech. In effect,
money and speech are the same thing.
This is tortured logic. It is divorced from the reality of political
campaigns, and it is the basis for the Court’s ruling in Citizens
United. The outcome is hardly surprising. Americans’ right to freespeech is now determined by their net worth. For average Americans, they get one vote. They go to the polls and cast their ballot
with millions of others. But for the wealthy and the super wealthy,
Buckley says they get so much more, says that they can spend un-

10limited amounts of money to influence our elections. And now with
Citizens United that right has been extended to corporations andother special interests.
The damage is clear. Elections become more about the quantityof cash and less about the quality of ideas; more about special interests, and less about public service.
We have a broken system based on a deeply flawed premise.
There are only two ways to change this: the Court could overturn
Buckley and Citizens United, which is unlikely with its current ideological makeup; or we amend the Constitution, we overturn theprevious bad Court decisions and prevent future ones. Until then,we will fall short of real reform. Until then, the flood of special interest cash will continue.
That is why I, along with several Members of this Subcommittee,
introduced S.J. Res. 29 last November. We are up now to 23 cosponsors, with several other Senators expressing support for a constitutional amendment in floor speeches and press interviews.
This amendment is similar to bipartisan proposals in previous
Congresses. It would restore the authority of Congress—stripped by
the Court—to regulate the raising and spending of money for Federal political campaigns. This would include independent expenditures, and it would allow States to do so at their level. It would
not dictate any specific policies or regulations. But it would allow
Congress to pass sensible campaign finance reform legislation thatwithstands constitutional challenges.
In Federalist No. 49, James Madison argued that the U.S. Constitution should be amended only on ‘‘great and extraordinary occasions.’’ I believe we have reached one of those occasions. Free andfair elections are a founding principle of our democracy. They
should not be for sale to the highest bidder.
I know amending the Constitution is difficult. And it should be.
Last week, during the debate on the DISCLOSE Act, Chairman
Leahy said that we must pass that bill now because of the ‘‘years
and years that a constitutional amendment might take.’’ The
Chairman makes a fair point.
But those ‘‘years and years’’ started decades ago. There is along—and, I might add, bipartisan—history here. Many of ourpredecessors from both parties understood the corrosive effectmoney has on our political system. They spent years championing
the cause.
In 1983—the 98th Congress—Senator Ted Stevens introduced anamendment to overturn Buckley. And in every Congress from the99th to the 108th, Senator Fritz Hollings introduced bipartisan
constitutional amendments similar to the one I have introduced.
After he retired, Senators Schumer and Cochran continued the effort in the 109th Congress.
And that was before Citizens United, before things went frombad to worse. The out-of-control spending since that decision has
further poisoned our elections. But it has also ignited a broad
movement to amend the Constitution.
Across the country, more than 275 local resolutions have passed
calling for a constitutional amendment to overturn Citizens United.
Legislatures in six States—California, Maryland, Hawaii, Vermont,
Rhode Island, and my home State of New Mexico—have called on

11Congress to send an amendment to the States for ratification.
Many more States have similar resolutions pending. And as has
been mentioned here, 1.9 million citizens have signed petitions in
support of an amendment. More than a hundred organizations,
under the banner of United for the People, are calling for constitutional remedies.
But an amendment can only succeed if Republicans join us inthis effort. They have in the past. I know the political climate ofan election year makes things even more difficult, but I am hopefulthat we can work together and that we can reach consensus on abipartisan constitutional amendment that can be introduced earlyin the next Congress.
We must do something. The voice of the people is clear, and sois their disgust.
And with that, Senator Durbin, thank you for your courtesies on
going a little bit over time. I would ask that I put my full statement into the record and once again thank you for this very important and timely hearing.
[The prepared statement of Senator Udall appears as a submission for the record.]
Chairman DURBIN. Thank you, Senator Udall. Of course, yourstatement will be in the record.
It is my pleasure now to introduce Congresswoman Donna F. Edwards, representing Maryland’s Fourth Congressional District, 15
years of experience on campaign finance reform, voting rights, andgovernment ethics issues. She was the first Member of the House
to introduce a constitutional amendment responding to Citizens
United. She has been actively engaged in educating the public
about this effort, and we are glad to have you on this side of the
Rotunda. Please proceed.
STATEMENT OF THE HONORABLE DONNA EDWARDS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND

Ms. EDWARDS. Thank you, Mr. Chairman, and to all the Members of the Committee and the Ranking Member, I really do appreciate the opportunity to be here today to testify. I think this is an
important hearing to examine the pending responses to the Supreme Court’s decision in Citizens United and related cases.
We do not have any doubt that we have entered into an unprecedented era in our political system and one in which Super PACs
seem to rule. ‘‘One person, one vote’’ seems more appropriate for ahistory lesson than a description of our current elections process.
The danger of Citizens United was heralded by Justice Stevensin his dissenting opinion. He could not have been more prescientwhen he warned that it would ‘‘undermine the integrity of elected
institutions around the Nation.’’ Justice Stevens’ warning materialized initially during the 2010 election cycle, but that was just the
opening salvo. We have seen at the start of the 2012 Republican
Presidential primaries the true scope and danger of Citizens
United.
Restore Our Future, a Super PAC supporting former Governor
Mitt Romney and run by his former staffers, poured nearly $8 million into Florida.

12
Winning Our Future, a Super PAC supporting former Speaker
Newt Gingrich, made a $6 million ad buy there.
After being targeted by Restore Our Future, Speaker Gingrichconcluded, ‘‘I think it debilitates politics. I think it strengthens millionaires and it weakens middle-class candidates.’’ I could not agree
more.
This is an equal opportunity corrosion. Democratic-leaninggroups are preparing to play, too, even while doing a little catchup with Republican-leaning groups. Sadly, the landscape continues
to darken as we march toward the 2012 general election.
According to the Center for Responsive Politics, 678 groups whoorganized as Super PACs reported receipts of over $280 million andindependent expenditures of more than $145 million already in thiselection cycle.
Putting an end to the influence of secret money on our elections
I think requires a three-legged stool approach:First, require increased disclosure of money in political campaigns;
Second, allow public financing of candidates for Congress. If we
do not own our elections, who will?
Then, third, amend the Constitution to give Congress the authority that it needs to regulate political expenditures.
I am an original cosponsor of measures that do just that, and,Mr. Chairman, I want to thank you for your sponsorship and leadership on the Fair Elections Now Act. And I particularly want toapplaud Senator Whitehouse for his leadership on the DISCLOSE
Act. While these interim reforms should be enacted into law tomitigate the influx of unregulated money in our elections, the Citizens United decision leaves Congress, I think, with really only one
true option, and that is, to amend the Constitution.
As a lawyer and someone who has dedicated nearly 15 years toworking on campaign finance reform, I do not take amending our
Nation’s guiding document lightly either. Indeed, as an advocate
and a donor, I spent the better part of my career shunning attempts by reform groups to support constitutional amendments.
That all changed with Citizens United. I believe firmly that suchbold action is warranted as we face the threat that Citizens United
poses to the health of the democracy. In its majority opinion, theCourt was clear: Congress does not have the authority to regulatethese expenditures. I do not agree, but the Court did double downin its conclusion in SpeechNow and in Bullock. Only an amendment
to the Constitution can provide Congress with the authority itneeds.
Fewer than two weeks after Citizens United was released, I
joined with House Judiciary Chairman John Conyers to introduce
the first constitutional amendment to reverse the decision. Our
amendment would have given specific authority to Congress andthe States to regulate corporate expenditures on political activity
by imposing content-neutral regulations and restrictions on expenditures of funds for political activity by any corporate entity excluding the media. It is very similar to Senator Baucus’ approach.
Ranking Member Conyers and I reintroduced our amendment inthis Congress.

13
But we are not alone in the fight. You have already indicatedthat 14 amendments—three in the Senate and 11 in the House—have been introduced during the current Congress. We all agree
that corporate money and individual wealth cannot dominate ourpolitics any longer. But as usual, the public is way ahead of us. We
can see that. Two hundred and seventy-five cities and towns from
Albany to Pittsburgh to Kansas City to Missoula have passed antiCitizens United resolutions, including my home State of Maryland.
The sponsors of a constitutional amendment all came together,and we agreed to what is called a ‘‘Declaration for Democracy,’’ todeclare our support for amending the Constitution. And today
1,854 public officials, including 92 Members of the House and 28
Senators, over 2,000 business leaders, and thousands of ordinary
citizens have signed their name to this declaration. And now someare questioning the need for an amendment, but the Supreme
Court has answered that question pretty unequivocally when it
overturned Montana’s century old limits on corporate spending.
The Supreme Court closed the door on reasonable laws to regulate campaign finance, and except for disclosure, the constitutional
door is the only one that really remains open. And we owe it to theAmerican people—and, Mr. Chairman, I know that you agree—tofind the consensus that we need and to walk through the door.
And so I want to thank you for this opportunity and thank you
for your work, and I appreciate the chance to be here today.
Chairman DURBIN. Congresswoman Edwards, thank you for coming. Senator Udall and Senator Sanders, thank you as well.
Unless my colleagues have a comment or question, I will thankyou once again and invite the second panel to come forward.
Chairman DURBIN. Before you take your seats, I will administerthe oath, which is the custom of this Subcommittee. If you willplease raise your right hand. Do you affirm the testimony you areabout to give before the Committee will be the truth, the wholetruth, and nothing but the truth, so help you God?
Mr. ROEMER. I do.
Mr. SHAPIRO. I do.
Mr. LESSIG. I do.
Chairman DURBIN. Thank you. Let the record reflect that all
three witnesses have answered in the affirmative.
Charles (Buddy) Elson Roemer III, former Governor of Louisiana.
Prior to becoming Governor of Louisiana in 1988, Roemer served
four terms in the U.S. Congress from 1981 to 1988. I was honored
to serve with him. As Governor, Buddy Roemer worked with theState legislature to enact sweeping campaign finance reform. Most
recently, Governor Roemer was a candidate in the 2012 Republican
Presidential primary. During his Presidential campaign, Governor
Roemer limited all campaign contributions to $100, practiced fulland immediate disclosure, and refused to accept contributions from
PACs, Super PACs, and corporations.
Governor Roemer, thank you for joining us today. The floor isyours.

14
STATEMENT OF THE HONORABLE CHARLES ‘‘BUDDY’’ ROEMER, FORMER CONGRESSMAN AND FORMER GOVERNOR,STATE OF LOUISIANA, BATON ROUGE, LOUISIANA

Mr. ROEMER. Thank you, Mr. Chairman. Thanks for inviting me.
Washington, D.C., appears to be broken, with gridlock, an
unreadable tax code that exports American jobs; dumb trade rather
than smart, non-existent budget discipline; too big to fail in perpetuity. Broken? Yes. But it is bought first. And it will not be repaired by those who profit from its impairment.
Political campaigns have always required funding, but citizens do
not now fund campaigns. The special interests do, because theygain a disproportionate say-so in public policy as a result. This dependence between special interest funding and political advancement is a form of institutional corruption in a representative democracy. It is corrupt when the size of your contribution determines your place in line. It is institutional when everyone does it,
when the invitees to your fundraisers are from the industries you
regulate.
The public’s perception is not only that Congress is a do-nothing,gridlocked institution, more interested in themselves than in us,
but that in order to fund that priority, they go to where the moneyis, the special interests, who have never profited more than now
while America hurts.
Four years ago, it became obvious when the two Presidential
nominees received more PAC and other special interest funding
from Washington, DC, and its environs than they did from the individual contributions of 32 States combined. That is four years ago.
It is now worse. With less than one percent giving more than 99
percent of all campaign funding, it cannot be called a Republic forlong.
Being on the campaign trail for the past 20 months with a $100
limit, full disclosure, and refusal of all PAC money, I saw the skewing of the current system toward the power of the unlimited givers.
I saw multiple candidates pretend non-coordination with their
Super PACs while personally addressing their Super PAC fundraisers. Uncoordinated? Are we stupid?
I saw qualified candidates excluded from the national televised
debates because they had not raised $500,000 in the prior 90-day
period. How do you do that without taking special interest money?
Raise it from the people, you say. Well, how do you do that if excluded from the debates?
Free to lead is the qualification of every great President, yet our
institutional corruption places our futures in the hands of the megacontributors. Who elects them?
When I came to Congress 31 years ago, the debate was between
full disclosure on the part of the conservatives and caps on giving
by liberals. Now we have neither. A constitutional amendment
might be required to address this imbalance, but it will and should
require careful debate. Statutory solutions can rectify much now.
Consider seven quick points.
One, full disclosure of all contributions and expenditures used
politically. Full disclosure does not solve all our problems, but sunlight is a powerful disinfectant.

15
Two, 48-hour reporting for all transactions in the political marketplace. Actionable, timely disclosure yields the greatest, most valuable information for the voting public.
Three, no financial contributions or assistance should be allowedfrom registered lobbyists.
Four, the limits on PAC contributions should be the same asexist on individual contributions, whatever they are.
Five, independent, non-coordinated efforts should be defined by
Congress with boundaries set at relatively low levels of connections
to candidate or campaign, disqualifying an entity.
Six, lobbying of Congress by retiring members should be disallowed for a period of at least five years post-retirement.
Seven, Congress should enact criminal penalties for the willful
violation of these six points.
Finally, I have come to support the use of public funds for candidates for Federal office who meet reasonable fundraising thresholds of small contributions from within their district. The cost is
minimal. The benefits to the anticorruption effort are powerful.
‘‘We, the people’’ is the phrase that guides us, not ‘‘we, the strongest,’’ not ‘‘we, the best and brightest,’’ not ‘‘we, the biggest.’’ ‘‘We,
the people.’’The system is not broken, Mr. Chairman. It is bought. Action isnecessary for a nation at risk. We need a speed limit on the highway to prevent and protect against corruption and the appearanceof corruption. Just a speed limit, not a ban. Broad limits, brightsunshine—a Republic.
[The prepared statement of Mr. Roemer appears as a submission
for the record.]
Chairman DURBIN. Thank you, Governor Roemer.
Next is Ilya Shapiro. He is a senior fellow in constitutional studies at the Cato Institute. Mr. Shapiro is an editor in chief of theCato Supreme Court Review. He frequently provides commentaryon political and legal issues for major news outlets. Mr. Shapiro
lectures regularly on behalf of the Federalist Society. He was an
Inaugural Washington Fellow at the National Review Institute. He
has worked as an adjunct professor at George Washington University Law School. Prior to joining Cato, Mr. Shapiro was a litigatorin private practice, earned his law degree from the highly regarded
University of Chicago and, after graduating, clerked for Judge
Grady Jolly on the U.S. Court of Appeals for the Fifth Circuit.
Mr. Shapiro, please proceed.
STATEMENT OF ILYA SHAPIRO, SENIOR FELLOW IN CONSTITUTIONAL STUDIES, CATO INSTITUTE, WASHINGTON, DC

Mr. SHAPIRO. Mr. Chairman and distinguished Members of the
Subcommittee, thank you for this opportunity to discuss campaign
finance law.
Let me first note that Citizens United is one of the most misunderstood, high-profile cases ever, so I will review what the caseactually said before discussing possible responses.
Citizens United is both more important than you might think—because it revealed the instability of our system—and less important, because it does not stand for what many people say it does.
Take, for example, President Obama’s famous statement that the16decision ‘‘reversed a century of law that I believe will open thefloodgates of special interests—including foreign corporations—tospend without limit in our elections.’’ In one sentence, the former
law professor made four errors of law.
First, Citizens United did not reverse a century of law. The President was referring to the Tillman Act of 1907, which prohibited
corporate donations to candidates and parties. Citizens United did
not touch that. Instead, the overturned precedent was a 1990 casethat, for the first and only time, allowed a restriction on politicalspeech based on something other than corruption or the appearance thereof.
Second, the ‘‘floodgates’’ point depends on how you define thoseterms. As you may have just read in the New York Times magazine, there is no significant change in corporate spending this election cycle. There are certainly people running Super PACs who
would otherwise be supporting candidates directly, but Citizens
United did not cause Super PACs, as I will get to shortly. And therules affecting the wealthy individuals who are spending more—bethey Sheldon Adelson or George Soros or the Waltons—have notchanged at all. It is unclear that any floodgates have been opened
or which special interests did not exist before.
Third, the rights of foreigners—corporate or otherwise—is another issue about which Citizens United said nothing. Indeed, justthis year the Supreme Court summarily upheld the restrictions on
foreign spending in political campaigns.
Fourth and finally, while independent spending on elections now
has few limits, candidates and parties are not so lucky, and neither
are their donors. Again, Citizens United did not affect laws regarding individual or corporate contributions to candidates.
More important than Citizens United was SpeechNow.org, decided two months later in the D.C. Circuit. That case removed thelimits on donations from political action committees, thus making
these PACs ‘‘super’’ and freeing people to pool money the same way
one rich person can alone.
And so if you are concerned about the money spent on elections—though Americans spend more on chewing gum and Easter candy—
the problem is not with the big corporate players. This is anothermisapprehension: Exxon, Halliburton, and all these ‘‘evil’’ companies—or even the ‘‘good’’ ones—are not suddenly dominating thepolitical conversation. They spend little money on political advertising, partly because it is more effective to lobby, but even more,
why would they want to alienate half of their customers? As Michael Jordan famously said, ‘‘Republicans buy sneakers too.’’On the other hand, groups composed of individuals and smaller
players now get to speak: your National Federations of Independent Business and Sierra Clubs, your ACLUs and Planned Parenthoods. So even if we accept ‘‘leveling the playing field’’ as aproper basis for regulation, the freeing up of associational speech
levels that field.
Moreover, people do not lose rights when they get together, be
it in unions, advocacy groups, clubs, for-profit companies, or any
other way.

17
Now, I have reviewed the various proposals introduced to remedy
some of Citizens United’s perceived ills. The gist is that if only we
can eliminate private money, elections will be cleaner.
The underlying problem, however, is not the underregulation of
independent spending, but the attempt to manage political speechin the first place. Political money, is like water: It will flow somewhere, because what the government does matters, and people
want to speak about their concerns. To the extent that ‘‘money inpolitics’’ is a problem, the solution is to reduce the political scopethat the money can influence. Shrink government and you will
shrink the amount people spend trying to get their piece of the pie.
While we await that shrinkage—and my Cato colleagues havesuggestions if you are interested—we do have to address the coreflaw in campaign finance. That original sin was committed by theSupreme Court, not in Citizens United but in the 1976 case of
Buckley v. Valeo. By rewriting the Federal Election Campaign Act
to remove spending limits but not contribution caps, Buckley upset
Congress’ balanced reform. That is why politicians spend all theirtime fundraising. Moreover, the regulations pushed money awayfrom candidates and toward advocacy groups—undermining theworthy goal of government accountability.
The solution is obvious: Liberalize rather than restrict the system. Get rid of limits on individual contributions and then havedisclosures for those who donate amounts big enough for the interest in preventing corruption to outweigh the potential for harassment. Then the big boys will have to put their reputations on theline, but not the average person. Let the voters weigh what a donation source means to them rather than—with all due respect—allowing politicians to write rules benefiting themselves.
In sum, we now have a system that is unbalanced and unworkable. At some point, enough incumbents will feel that they are losing message control so that they will allow fairer political markets.
Earlier this month, for example, the Democratic Governor of Illinois signed a law allowing unlimited contributions where there wassignificant independent spending. This is political self-preservation,
but that is fine. Once more politicians realize that they cannot prevent communities from organizing, they will want to capture moreof their dollars. Stephen Colbert would then have to focus on otherlaws to lampoon, but I am confident that he can do that, and wewill be better off.
Ultimately—and I will conclude with this, Mr. Chairman—theway to ‘‘take back our democracy’’—to invoke this hearing’s name—is not to give government more power to decide who should speak
and how much.
Thank you again for having me. I welcome your questions.
[The prepared statement of Mr. Shapiro appears as a submission
for the record.]
Chairman DURBIN. Thank you very much, Mr. Shapiro.
Lawrence Lessig is a professor of law at Harvard Law School anddirector of the Edmond J. Safra Center for Ethics at Harvard University, a nationally recognized scholar, author, speaker. Professor
Lessig is one of our Nation’s leading authorities on constitutionallaw and campaign finance reform. Prior to teaching at Harvard,
Professor Lessig clerked for Judge Richard Posner on the Seventh

18
Circuit Court of Appeals in Chicago and subsequently for JusticeAntonin Scalia on the U.S. Supreme Court. In addition to servingon the boards of other nonprofit organizations, Professor Lessig ison the Advisory Board of the Sunlight Foundation, an organization
dedicated to using the Internet and technology to foster a more
open and transparent government. Many of our witnesses makemany sacrifices to appear before us, but none makes a greater sacrifice than your son, who interrupted his family vacation to accompany his father to this hearing, so we thank him for joining us.
[Laughter.]
Chairman DURBIN. Professor Lessig, the floor is yours.
STATEMENT OF LAWRENCE LESSIG, ROY L. FURMAN PROFESSOR OF LAW AND LEADERSHIP, HARVARD LAW SCHOOL,CAMBRIDGE, MASSACHUSETTS

Mr. LESSIG. Thank you, Mr. Chairman, and I commend thisCommittee for holding this hearing, which is really a celebration of
the extraordinary grassroots movement led by new organizations,such as Free Speech for People and Move to Amend, and more established organizations, such as People for the American Way andCommon Cause, that has developed to demand the reversal of Citizens United and an end to the system for funding elections that
leads most Americans to believe that this government is corrupt.
Yet this hearing could only be the beginning of the serious workthat will be required to address the problem in America’s democracy that Citizens United has come to represent, and that problem
can be stated quite simply: The people have lost faith in their government. They have lost the faith that their government is responsive to them because they have become convinced that their government is more responsive to those who fund your campaigns. As
all of you—Democrats, Republicans, and Independents alike—findyourselves forced into a cycle of perpetual fundraising, you become,or at least most Americans believe you become, responsive to thewill of the funders. Yet the funders are not the people; 0.26 percentof Americans give more than $200 in a congressional campaign,
0.05 percent give the maximum amount to any congressional candidate, 0.01 percent, the one percent of the one percent, give morethan $10,000 in an election cycle. And in the current Presidential
election cycle, 0.000063 percent—that is 196 citizens—have funded
80 percent of the indivdual Super PAC contributions so far.
There are two elections in America today—not the primary andgeneral election, but the money election and the voting election.
And to win the voting election, you must first compete in themoney election. But unlike the voting election, not every citizen canparticipate equally in the money election. Instead, it is only thevery few who can compete at all. And it is because of this moneyelection that we have evolved a system in which the elected are dependent upon the tiniest slice of America. Yet that tiny slice is in
no way representative of the rest of America.
This, Senators, is corruption. It is not corruption in the criminal
sense. I am not talking about bribery or quid pro quo influencepeddling. It is instead corruption in a sense that our Framers
would certainly and easily have recognized. They architected a government that in this branch, at least, as Federalist 52 puts it,

19would be ‘‘dependent upon the people alone,’’ but you have evolved
a government that is dependent upon the people and dependent
upon the funders. And that different and conflicting dependence isa corruption of our Framers’ design, now made radically worse by
the errors of Citizens United.
But in responding to those errors, please, do not lose sight of one
critical fact: On January 20, 2010, the day before Citizens United
was decided, our democracy was already broken. Citizens United
may have shot the body, but the body was already cold. And any
response to Citizens United must also respond to that more fundamental corruption.
Now, how you do that—how you do that—will be as important
as what you do. For America’s cynicism about this government,
whether fair or not, is too profound to imagine that this Congressalone can craft a response that would earn the confidence of theAmerican people. Instead, this Congress needs to find a processthat could discover the right reforms that itself could earn the trustof the American people. That process should not be dominated bypoliticians or law professors, indeed, by any of the professional institutions of American Government. It should be dominated insteadby the people.
I have submitted today to this Committee the outline of one suchplan, what I called a series of ‘‘citizen conventions,’’ constituted asa kind of civic jury and convened to advice Congress about the bestmeans for reform. But whether it is this process or another, yourchallenge is to find a process that could convince America that a
corrupted institution can fix itself.
The confidence of the American people in this government, inyou, is at a historic low. That is not because of the number of
Democrats sitting in Congress. It is not because of the number ofRepublicans. And it will not change simply by changing the number of Democrats or Republicans sitting in Congress. Instead, confidence is at a historic low because of the dependence that all of
you and all of us have allowed to evolve in this government thatdraws you away from a dependence upon the people alone.
I thank you for the beginning this hearing represents, and more
importantly, I thank the extraordinary citizens who have united to
get you to focus upon this issue. But I urge you now to act in a
way that has a real chance to restore that confidence of the people
in their government.
Thank you very much.
[The prepared statement of Mr. Lessig appears as a submission
for the record.]
Chairman DURBIN. Thank you, Professor Lessig.
Let me just note for the record here that at 3:40, in just a few
moments here, we are going to suspend the hearing for a momentof silence. It is the 14th-year anniversary of the death of two of ourCapitol Hill policemen, and across Capitol Hill that moment of silence will be acknowledged. So I will let you know when that arrives. But until then, we will continue to pursue the questioning
here.
Professor Lessig, one of the things I found interesting in yourtestimony—you did not mention it, but as written—is this notionof a citizens convention. Most of the constitutional amendments

20that are being proposed talk about actually changing the Constitution. You have taken it a step beyond that, have you not, in termsof opening it up to a much different process to bring in a lot of newvoices.
How do you guarantee that a citizens convention is not overwhelmed by these same oligarchs?
Mr. LESSIG. So the process that I have described of the citizen
conventions would be conducted in the way that, for example, Professor Fishkin of Stanford has conducted, what he calls ‘‘deliberative polls.’’ So in this procedure, we take a random selection of, let
us say, 300 citizens. Imagine we run four of these conventions
around the country, one in each region, four regions in the country.
And these 300 citizens would act as a jury—as a jury that would
listen to the submissions of people about what these issues are andwhat the solutions are and they would deliberate. And they would
deliberate—in my view, they should be sequestered, they should becompensated, they should be protected so that they can do theirwork like any jury can do its work with the confidence and protection necessary. But in that process, we would involve a cross-section, a representative random cross-section of the American public.
And my view is this process is necessary because, as Americans
look to this institution and, frankly, to people like me, law professors or lawyers who talk about this issue, their eyes glaze over because they cannot believe that the institution has the capacity tochange itself to deal with what is the core problem.
So that is the way that bringing in another voice into this process could aid this Congress, I believe, in thinking about what response might actually earn the trust of the American people.
Chairman DURBIN. Governor Roemer, when you served in theHouse of Representatives, I do not know if you raised money in thesame fashion as you did during your Presidential campaign. But
you certainly got to see a contrast to your approach in the Republican Presidential primary when one Las Vegas casino magnate, as
he is generally referred to, decided to bankroll one of your opponents, Newt Gingrich, and put $20 or $30 million in and promised
more if needed.
Tell me how the dynamics of the campaign were affected by thatdecision.
Mr. ROEMER. To your first point, when I was a Member of theHouse of Representatives, I chose not to accept PAC money. I think
I was the only Member who made that choice. I came from a State
that had a culture, a history of tolerance of political corruption, if
I could say that gently. I love Louisiana. Let me say that clearly.
I ran for Governor in that State as the only candidate not to take
PAC money. I had no chance. I was sixth in a five-man race. But
I won in the end with less money but making money the issue. So
I know this can be done.
When I ran for President this time, after being out of politics for
20 years—and very happy, Senator, let me just say the best 20
years of my life. Building community banks is what I do. No Federal bailout money, just lean and clean and profitable.
When I ran for President thinking that maybe we could connect
with the American people on the issue of money, I found a couple
interesting dynamics that surprised me. One is the whole public

21
out there depends on the debates as to their impressions of people,
and every Republican in that race kind of had their moment in thesun. They would rise and fall with those debates.
Well, interestingly enough, I was the only candidate running who
had been elected Governor and a Congressman and was a successful businessman, and I was not invited to a single debate—not oneof the 23 nationally televised debates. And you have known me fora long time. I love the debates. I mean, that is where I am alive.
And I think I made a mistake, Mr. Chairman. I gave a speech in
Iowa early in February 2011, and it was Romney, Santorum, andseveral others were there, Newt Gingrich. And I got the only standing ovation, and I had talked about eliminating the ethanol subsidy
and the oil subsidy.
I mean, the 1,200 people in that room were like stunned about
the sacrifices that we have to make to get this government strong
again. And I talked about their sacrifice and mine, and I got astanding ovation. I was not invited to another debate after that. I
just could not raise the money.
So I have found, much to my surprise, after 20 years gone, thatpolitics had changed. And it is like Larry Lessig, a friend—I trust
Larry completely. It is like Larry Lessig just said. There are tworaces that you run: the race for money and then the race for votes.
And what I tried to do running for President was to run the race
for money so that I would be free after elected to do the right thing.
And I would not have to call Wall Street for bank reform. I would
not have to. I would listen to them, but I would not have to callthem. I would not have to have a fundraiser there. I would nothave to go to the top of the money pile to get my answers. And I
found that it affected everything I do.
I raised about three-quarters of a million dollars, the average gift$45. I was the only candidate that got Federal matching funds atthe end. I qualified. I had it from all 50 States. I paid my bills, andI returned a substantial amount of money back to the Federal
match. It can be done. But you have got to get on the debate, and
it is all about the money.
Chairman DURBIN. Thank you.
Mr. Shapiro, if this were a trial and you were a witness, the firstquestion I would ask you is the following: Is it true that you arehere representing the Cato Institute, which is, in fact, financed
largely by the Koch brothers, whom you are defending in terms of
their contributions to Super PACs? Should you have recused yourself under those circumstances?
Mr. SHAPIRO. No.
Chairman DURBIN. Do you want to turn your microphone on,please?
Mr. SHAPIRO. The answer to that question as a whole and thevarious subparts is no. I am here representing myself. Wheneverwe speak as Cato scholars, we use our institutional affiliation for
identification purposes. Some of my colleagues might disagree withsomething that I said today. I do not know. And I guess if they disagree too much, or at least if the management does, I might get
fired. I do not know. But the Koch brothers have not financed Catoin the last several years. As you may know, they sued Cato recently. Thankfully, it seems that that lawsuit is working toward a22settlement now. The Kochs represented less than two percent of
Cato’s donations in the last decade.
I have received funding through Koch sources over the course of
my career and when I was a student to attend seminars and things
like this. I do not generally have a problem with the sorts of things
that the Kochs are doing, but I am certainly not bought or paid forby any more than I am bought or paid for any other number ofCato donors. We are hired because we believe in libertarian ideas,
and some people want to fund those ideas, and I am grateful for
that, because if they did not, then I guess I would have to go andbe a litigator again.
So there you go.
Chairman DURBIN. Thank you. My time is up.
Senator WHITEHOUSE. And I remind you that at 3:40 we willtake a moment.
Senator WHITEHOUSE. Go ahead.
Chairman DURBIN. Senator Coons, would you like to go first?
Senator COONS. I want to thank Senator Durbin for chairing andconvening this hearing, and I would like to particularly thank Senator Udall for his testimony before and for his leadership in sponsoring a constitutional amendment, which I was pleased to join.
And I do think this amendment, although it does not include express limits on campaign spending, makes an important step forward in restoring the power of this body to regulate campaign finance as well as the States. So I wanted to, if I could, address aseries of questions to you while being mindful of the impending moment of silence.
First, if you would, Mr. Shapiro, I was struck at your passion at
advocacy for disclosure, something that was long shared by a broad
range of Members of this body, Republican and Democrat. How do
you account for the complete abandonment of disclosure as a principle by Members of the other party? We recently took a floor voteon the DISCLOSE Act, which I thought would have been an important step forward toward dealing with some of the challenges of ourcurrent campaign financing system. How do you account for thecomplete absence of any support for broader disclosure in the current campaign financing environment?
Mr. SHAPIRO. Well, I do not speak for the Republican Party, ofcourse. I can tell you what I think about the DISCLOSE Act, which
may or may not parallel the thinking of some of your colleagues on
the other side of the aisle, and that is that the DISCLOSE Act ismore about deterring speech than about disclosure, and it is certainly different from the type of regime that I would have in mind
that I was passionately advocating, as you say.
I think the George Soroses and Sheldon Adelsons and Kochs of
the world should have to disclose if they are making major multimillion donations, but under the current regime, you know, themaximum donation is $2,500. I think that is too low. I do not think
any politician—I think more highly of you, Senator Coons, than tothink that you can be bought by a $2,500 donation, for example.
And so I am for certain types of disclosure, but there are a lot of
problems with the DISCLOSE Act, both in the numbers and exemptions for unions and other things like that.

23
So with another type of disclosure regime, I think you might seeother types of votes.
Senator COONS. Professor Lessig, your colleague to your left
there suggested that Citizens United did not really overturn settled
law. Any difference of opinion on that point?
Mr. LESSIG. Very strong difference of opinion. In particular, I
guess I take some—well, I would not say ‘‘offense,’’ but I want to
say it is a little bit harsh to say that the President, a former constitutional law professor from your law school, was in error in his
characterization of Citizens United. I do not think he was in error
at all. What he said was that it overturned a century’s law, andwhat he was referring to was the very clear indication in the Supreme Court, explicitly articulated by Justice Scalia, that theywould not treat the First Amendment as making any distinction
based on speaker. And the assumption that you could regulate on
the basis of the difference of speaker was fundamental from the
Tillman Act on. So that is why the Tillman Act has a very specificregulation of corporations, and there was in Taft-Hartley a different set of regulations around unions than around corporations.
And, quite frankly, that principle the Supreme Court itself has now
abandoned, as Justice Stevens recently commented in a speechwhen the Supreme Court upheld limitations on legal immigrants
participating in the political process while striking down limitations on corporations participating in the political process.
So, quite frankly, it is the Supreme Court that I would criticize
as confused in this particular area, not the President.
Senator COONS. Thank you, Professor. If I might, I will note wehave reached the moment.
Chairman DURBIN. Excuse me, Professor Lessig and Senator
Coons.
I might note for those who were not aware that, 14 years ago,
Capitol Hill Police Officer Jacob Chestnut and Detective John Gibson of the U.S. Capitol Police were killed in the line of duty defending the Capitol, the people who work here, and its visitors against
an armed intruder. And for those who are physically able, I would
ask you to please rise for a moment of silence.
[Moment of silence.]
Chairman DURBIN. Thank you very much.
Senator Coons, please proceed.
Senator COONS. Thank you, Mr. Chairman.
I will, just in closing, remark on our gratitude for the men andwomen of the Capitol Police who protect us each and every day andprotect the many folks who work here and the many citizens whocome here to offer their testimony and their witness.
Professor Lessig, if I might just in closing, you offered a tantalizing vision of how we might mobilize broadly the citizens of thiscountry to become, in effect, real Citizens United to galvanize action by the Senate. If you could just explain in a little more detail
how you think an effective citizen convention might move us toward effective action in campaign finance reform.
Mr. LESSIG. Well, I think the most difficult problem here is that
this is a difficult problem to solve. Unlike the 17th Amendment,
which when it changed the Senate from being appointed by Statelegislatures to be elected by the people, that solution was a simple

24
one to craft. Everybody understood how to do it. The words were
not in contest.
What we have seen in the range of proposals here is that it isa really complicated question, and it should be carefully deliberated
upon in a way that could bring people into the conversation much
more effectively than, frankly, any hearing process could inside of
the U.S. Congress.
So my suggestion is if we had a process that was open and observed by people, where ordinary people participated—and I haverun mock conventions of ordinary people talking about constitutional matters—I think to the surprise of many people, you would
see that ordinary people deliberating about what the Constitution
needs and how the reforms should go forward would far surpass 98
percent of what is commonly discussed in this particular context.
And that is because, frankly, politics is the one sport where theamateur is better for the Nation than the professional, because theprofessional is very good at figuring out what the particular interests that he or she represents needs, but the amateur can bebrought to a point where he or she thinks about what the Nationneeds. And I think we need at least that part in this process.
So if this Congress convened a series of citizen conventions that
could advise Congress—it would have no legal authority, of course,
but if run in the right way, it could advise Congress in a way that
could make people look at it and say, OK, if four of these conventions have said the following amendments make sense and Congress then proposes those amendments, we have a reason to havesome confidence that this might actually be a way to solve theproblem.
Senator COONS. Professor Lessig—I see I am out of time—that
is a very, I think, compelling proposal. It is sort of harkening towhat is at the heart of our jury system, our grand jury system, andhow average citizens are empowered in our system, or should be,
to make fundamental decisions both about the substance and theprocess of governing.
Governor Roemer, I just want to say thank you for your verystrong example.
Mr. ROEMER. Thanks.
Senator COONS. It is a striking example that you were not engaged in the debate so that your voice was really not a part of the
Presidential campaign.
Mr. ROEMER. Well, as the only non-lawyer around these parts—
you know, and I never admit to going to Harvard undergraduate
and the Harvard Business School when I am in Louisiana, but I
think I am far enough away now to go ahead and admit that.
[Laughter.]Mr. ROEMER. But as a former Senator would always say when hefought civil rights legislation, talking about the distinction that
Larry made between the professional politician—us—and the average citizen, as Russell of Georgia would say, ‘‘It is not about thepoll tax. It is about States’ rights.’’ Of course, we knew what it was
about. And citizens meeting to focus on what is needed to make ourConstitution real would be powerful. I think it is a great idea.
Chairman DURBIN. Senator Whitehouse.

25
Senator WHITEHOUSE. Governor Roemer, you will be pleased toknow that States’ rights has declined a bit in its stature aroundhere once it became a potential place for credit card customers to
get out from under the rules that are set in South Dakota or people
were trying to avoid the gay marriage licenses of other States. I
think that was a doctrine of convenience then, and interesting thatyou should bring it up.
Professor Lessig, the Supreme Court in Citizens United said, andI quote: ‘‘Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.’’What was it doing when it said that? Is that a judicial determination? Is that a conclusion of law? Is that an act of taking judicial notice? What were they doing?
Mr. LESSIG. I think they were blundering when they said that.
Senator WHITEHOUSE. We know that, because we know that they
were wrong.
[Laughter.]Mr. LESSIG. And as I have written, I think they were blunderingin a way that harkens back to the mistake of the Supreme Courtin the Lochner era, where in a similar way, the Court, sitting highabove the legislative process, looked down and reviewed what thelegislature had said about whether health legislation was actuallyaffecting the health of workers, and said, ‘‘We do not buy it. We
do not think it affects the health of workers. We think it is reallyabout taking money from the capitalist and giving it to the workers, so we are going to strike it down.’’
A judicial finding of fact based not upon evidence—there was no
submission to suggest this——
Senator WHITEHOUSE. In fact, they went well out of their way tomake sure that there was no record that might give contrary evidence to the finding of fact that they made.
Mr. LESSIG. Absolutely. And, actually, in the Montana case, themost striking thing, I think, about the Montana case was the
Court’s decision to summarily reverse the Montana case when theMontana Supreme Court’s appeal was chock full with all the arguments necessary to see why this is a kind of corruption, this current system is a kind of corruption. But the current Court is dominated by Justices who believe the only corruption that is relevant
is quid pro quo corruption.
Senator WHITEHOUSE. Criminal corruption was your testimony.
Mr. LESSIG. That is right. But from the Framers’ perspective,that is outrageous. The Framers of our Constitution were more concerned with the systemic, what Buddy called the ‘‘institutional corruption,’’ than they were worrying about whether there would be
the Randy Duke Cunninghams or William Jeffersons inside of Government. They were worried about setting up a system that would
create the right incentives, the right dependencies. And what wehave seen now is a corruption of that——
Senator WHITEHOUSE. They talked about that in the debates that
led to the Constitution, and they used the very word ‘‘corruption’’in those discussions, and it was sort of the opposite side of the coinof integrity of government.
Mr. LESSIG. Absolutely. That is exactly right.

26
Senator WHITEHOUSE. Now, you used to clerk for Judge Posner,
did you not?
Mr. LESSIG. I did.
Senator WHITEHOUSE. Recently, Judge Posner critiqued the Citizens United decision. He is a very conservative judge, so it was interesting coming from him. He said, and I quote, ‘‘Our political system is pervasively corrupt due to our Supreme Court taking away
campaign contribution restrictions on the basis of the First Amendment.’’
Do you have a sense of what he meant using the phrase ‘‘pervasively corrupt’’ ?
Mr. LESSIG. I think that he is referring to the kind of corruptionthat I am talking about, and in this sense, this is the way inwhich—I want to take more distance from Mr. Shapiro’s testimony.
When Mr. Shapiro and libertarian organizations say the solution tothis problem is just to remove all limits so that we do not have any
caps on the amount that people can give directly to campaigns or
indirectly to campaigns, let us just have disclosure but no limits,that does not in any way respond to the kind of corruption that I
am talking about, because what we have seen—and Montana,again, submitted evidence about this—is that when you remove
limits, overwhelmingly the pattern is for campaign contributions togo up dramatically so that we concentrate even more fundraisingin the tiniest slice of the one percent in a world where there is nolimits. So we would go to a world where maybe 1,000 families
would be funding all the campaigns in a world where there are no
limits on campaigns, and that would be more corruption relative tothe current system in the framework that I think the Framers gave
us for thinking about how to keep this institution non-corrupt.
Senator WHITEHOUSE. And if you go behind the—I agree withyou. It is a judicial finding of fact. You are an expert in appellate
law as well. Let me start with: What is the role of ab initio judicial
findings of fact at the Supreme Court level?
Mr. LESSIG. Well, the Supreme Court has learned again andagain the high costs that it suffers when it engages in exactly thatkind of behavior. It is striking that it forgets it again and again,
but it learns it again and again after——
Senator WHITEHOUSE. Because it seemed a little convenient inthis case, but I will——
Mr. LESSIG. That is right. And I think that the Court’s opinion,
to the extent that it says that the people cannot perceive this ascorruption, just cannot stand, because, of course, the people arepretty good at perceiving this as corruption. And there is all thereason in the world for them to perceive it as corruption, not necessarily the corruption that says that anybody is being bought—so,
again, it is not the question of whether $2,500 buys a Senator ornot—but from the perspective that what it does is guarantee thatyou are constantly focused on what the 0.05 percent of America
cares about so that you can win in the money race so that you havea shot in the voter election.
Senator WHITEHOUSE. And as a matter of traditional appellate
practice, judicial findings of fact are supposed to be made at thetrial court level or by a jury.
Mr. LESSIG. That is true.

27
Senator WHITEHOUSE. And not by either intermediate or ultimate
appellate courts, correct?
Mr. LESSIG. That is right, although in constitutional context, theCourt has a significant role in making what is thought of as constitutional findings of fact like this. But what is so striking
about——
Senator WHITEHOUSE. This is not constitutional finding of fact.
This has to do with the behavior of human beings in a political environment.
Mr. LESSIG. It does.
Senator WHITEHOUSE. And whether or not somebody will be corrupted by, say, a secret, multimillion-dollar expenditure made on
their behalf by a special interest. The notion that that cannot happen seems to me to be absurd.
Mr. LESSIG. OK. You can—you should say that. As a law professor, I should avoid that word because my students will have lessrespect for what I say. But it is something that I think is deeply
troubling in that decision. It is one of the core mistakes of that decision—a decision, though, that—let me say that the kernel of thatdecision, the idea that Congress should not be able to silence or effectively silence anybody, you could agree with, without agreeing
with the implication that the Court made from that decision, thatbasically Congress has no power to intervene to try to limit the corrupting influence on this democracy.
Senator WHITEHOUSE. And I would conclude by asking you, I
hope, a very short question. What we I think both agree is an inaccurate finding of fact that they made stood on two subordinate
findings that they also made. One is that—or presumptions thatthey made. One is that these expenditures would, in fact, be independent, and the second is that they would be disclosed. Are eitherof those legs borne out by the facts in Citizens United?
Mr. LESSIG. They are certainly not disclosed. The Court was mistaken in its understanding of the extent of disclosure obligations.
But even if we assume that they are independent in the sense that
nobody is behind the doors agreeing on ways to coordinate, what
we have understood from antitrust law since the beginning of antitrust law is that there are ways to coordinate without explicit
agreement. And when you are looking at the same polling data, theSuper PAC and the campaign, and you understand the same data
supports the same response, you do not have to actually pick up
the telephone and make any agreement——
Senator WHITEHOUSE. Well, throw in former staffers, family
members running it, the same consultants on both sides of theequation, the Super PACs using actual footage from the candidates’
campaigns, and, frankly, I think your competitor, Mr. Santorum,
actually won in Minnesota only through his Super PAC. So it does
not seem to be holding up very well.
I should yield. I have gone over my time.
Mr. ROEMER. And the lead benefactor, Senator, was standing behind Rick when he gave his victory speech in the central part ofAmerica—I think it was Missouri that night—and there was no coordination. He just was four feet away from him.
[Laughter.]
Senator WHITEHOUSE. Thank you, Governor Roemer. I yield.

28
Chairman DURBIN. Senator Klobuchar.
Senator KLOBUCHAR. Well, thank you very much, Mr. Chairman.
Thank you for holding this hearing. Since we are mentioning theMidwest, it is a good time for me to talk.
I am someone who is up for office now and have seen firsthandwhat is going on here, and I truly believe that unless we fix this,
we are going to literally undermine our elections and our democracy. And my first question is really just about how this has rolled
out, and I guess for you, Governor Roemer, having been in the middle of it, I think most people anticipated that corporations would
give a lot of money, and I think that they are, through 501(c)(4)s,which is really hard to track down, which is part of the DISCLOSE
Act. But I am not sure anyone anticipated that individuals would
give to this extent, that one billionaire would write a $10 million
or a $15 million check, and how the influence that that one person
can wield over an individual, I think, was something that was not
at first anticipated when this came out. And I wondered if you
could comment on that, Governor Roemer?
Mr. ROEMER. I think you are absolutely correct, Senator. I readnor spoke with anyone—I read anything that anybody wrote or
spoke to anyone who a year and a half ago predicted this onslaught
of individual wealth and large checks. But the pattern has been
coming for a number of years, and one of the interesting things tome, as kind of a populist at heart, you know, being from that cotton
farm in north Louisiana and I cannot get away from it, the lessons
learned, is how distant the average person has become from theprocess, which includes the money. And it is not healthy. And they
are angry about it. If you get the meeting room to express theirfear and their anxiety, it is like it will bring the room to a stop.
So I am here to—I am not a constitutional lawyer. I get my advice from Larry. I apologize, and I admit that. The first person I
went to see when I decided in December 2010 to run for President,
the first person I went to see the first week in January 2011 was
Larry Lessig. We had never met. We had a mutual friend, a guy
named Mark McKinnon, who is a political strategist who helped me
run my campaign for Governor. And Mark and I were close, andI gave Mark the speech at my family meeting—Mark is like partof my family—that I was running for President, $100 limit, no
PACs, no Super PACs, full disclosure, and let us get it on. I remember the speech. I will not go through it now.
Senator KLOBUCHAR. Thank you. I only have seven minutes.
Mr. ROEMER. I know. Mark says, ‘‘Well, you have got to call
Larry Lessig,’’ and he gave me the number. And that is when Larry
and I met, and we have worked together. We do not always agree
but work together. But one of the surprising things to, I think, bothof us is the lack of credibility and feasibility of a candidacy if you
do not embrace the big checks, because you cannot win. Wow.
Senator KLOBUCHAR. Yes. You know, one of the things that I
think is just so ironic here is anyone that is running, if you are a
candidate, you disclose everything that is over $200, and it is out
there, everyone can see it. And that is one of the beauties of ourlaws right now. And you can disagree with people who are giving,
but at least you know who it is. And this has completely decimated
that.

29
And I also was wondering, Professor Lessig, if you could talk alittle bit about what effect you think this could have legally onsome of the down-ballot races, not just the congressional races but
State and local and what could happen there. I know in my State
we have campaign finance laws that allow for matching funds,
which has evened the playing field somewhere, where there is public funding for half the money basically for legislative races, andwhat you could see happening here.
Mr. LESSIG. Well, it is certainly the case that this business modelof the Super PAC, which because of changes in the last has become
an extremely effective vehicle for large donors to channel their influence, is spreading not just at the Federal level but at the Statelevel, even the local level. In my testimony, I pointed out a Denver
school board race which is in the hundreds of thousands of dollars
in contributions and expenditures for a school board position thatwas facilitated by exactly this kind of dynamic.
And so you are going to see this happen across the board because, as campaign managers begin to think about what is themost effective device for channeling money into a political election,these Super PACs will serve it.
There have been three very important counter examples to this—Arizona, Maine, and Connecticut most recently—which have tried
to facilitate small-dollar-funded elections. I do not like to call it‘‘public funding’’ because it evokes a different idea—small-dollarfunded elections where people need to raise a certain amount ofmoney in small-dollar contributions and those then get to bematched—this was the model, of course, the Fair Elections Now
Act proposed—has dramatically changed the way those State legislature elections work.
In Connecticut, in the very first year of that system, 78 percentof the elected representatives ran with this small-dollar-funded system on both the Republican and Democratic sides of the aisle, 78
percent of the elected representatives used that. So this convincesme that if we just get the numbers right and have a kind of smalldollar system inside of Congress, you just change the businessmodel. This is just incentives. Change the business——
Senator KLOBUCHAR. Especially with the Internet, I mean, thiswas the hope, that you are able to reach out, as Governor Roemer
knows, to more people on the Internet. But it completely gets overwhelmed by these $10, $15 million checks.
My last question would be, obviously—I am a cosponsor of the
DISCLOSE Act. I think it is important to disclose, but we all knowthat is not going to fix it. When you talk about your idea of citizens
gathering for these basically constitutional conventions on the local
level, how do you see this working with actually getting the amendment passed that it appears that we are going to have to pass to
fix this?
Mr. LESSIG. I think that these conventions should come up with
their view of what the right answer looks like, and that shouldcome back to this Congress, and this Congress should be required
to then answer the view of these conventions: Here is what we
think is should be, here is how Congress responds to that. And
then hopefully the process comes to some convergence on what the30right answer looks like, which Congress could then introduce as anamendment that gets sent down to the States.
This is a short circuit around the way the Framers thought wewould bring the States and the people into this process, which isa constitutional convention or an Article V convention that theStates call up on. A lot of people have problems with that. I havemore faith in that system than most. But I think this system would
at least bring citizens into the process at a time when the technology enables people to participate in a way that would be quite
effective, but could product something valuable and useful for Congress to use in figuring out what the right answer looks like.
Senator KLOBUCHAR. Thank you very much.
Chairman DURBIN. Senator Blumenthal of Connecticut.
Senator BLUMENTHAL. Thank you. Thank you, Senator Durbin.
Thank you for convening this hearing, which I think is profoundly
important for all the reasons that you have stated very eloquently
as members of this panel and also the panel before. And the Congress has sought to wrestle with these issues, most recently in the
DISCLOSE Act, which I have been proud to cosponsor. Obviously
it would not impose any restrictions on the size of funding, only require that there be some greater measure of transparency and literally disclosure, which seems like a fairly modest and limited,very simple and straightforward way of remedying some—in a very
limited way—some of the issues that have been raised. And, youknow, your reference to the Connecticut system of public financing—which has been upheld by the courts—it was challenged while
I was still Attorney General, and it has been upheld now. But I
think that the combination of the 501(c)(4)s and the Super PACs
threatens to make a mockery, literally to make a mockery, of any
similar systems because the amounts of potential so-called independent financing will overwhelm the amounts available to candidates, and the test will really be not so much in this cycle as thenext one, when there will be statewide campaigns for all the statewide offices, and we will see whether, in fact, these systems cansurvive that onslaught and deluge of money anonymously and inmagnitudes that have not been seen in campaigns before.
And so I think that, you know, the first question I would have,
Professor Lessig, is whether, in fact, you can think of ways tochange a Connecticut-type system to constrain or to overcome thatthreatened deluge.
Mr. LESSIG. Well, I agree with Congresswoman Edwards’ comment earlier that this is a solution that requires—this is a problem
that requires a three-legged solution. So disclosure is importantand critical. That is leg one.
I have been, every chance I can, saying a critical second leg has
got to be the kind of citizen-funded elections that the Fair Elections
Now Act would represent, or we have been talking about a voucher
system. Congressman Sarbanes is considering introducing legislation that would start a pilot for a voucher system where individuals
would have a democracy voucher that they could use to contribute.
But a third thing has got to be a response to this constitutional
problem the Supreme Court has created. So I do not think that
there is a way, given the Supreme Court’s authority right now, to
use the citizen-funded component to directly limit the opportunity

31
for independent expenditures But I do think if there is enoughmoney in the citizen-funded component, you could overwhelmthem.
In the democracy voucher program that I have described, $50 a
voter is $7 billion just for congressional elections. That is threetimes the total amount raised and spent in 2010. So that would bereal money, and the critical thing is it would be coming from voters
across the income spectrum, it would not be coming just from thetiniest slice of the one percent, which would be a significant way
to make the funders the same as the people and so, therefore,
eliminate the kind of corruption that I have been talking about.
Senator BLUMENTHAL. And, you know, the problem is not somuch raising the money that candidates need to qualify for the
public support. It is what happens when the anonymous groups
come forward and raise the ante and thereby overwhelm them. And
what I hear you saying is, given the current constitutional jurisprudence from this Supreme Court, it would be very difficult tocounter it.
Mr. LESSIG. That is right, although there have been clever—or atleast one very clever strategic response. So Congressman Sarbanes,
again, finding himself drawn, because it is natural and more efficient, to only raise large-dollar contributions, did what I think has
never happened in the history of the U.S. Congress where he boundhimself through a legal document. He raised three-quarters of amillion dollars and then said that he could not touch the threequarters of a million dollars until he raised 1,000 small contributions. And then on June 30th, he achieved his 1,000 small contributions. And the reason he did that was that if a Super PAC camein and attacked him, he would have 1,000 small contributors toturn to to say, ‘‘We need your help to respond to the Super PAC.’’So that is a dynamic, to use small-dollar contributions, just manyof them, to create a large army of potential supporters who could
respond to that big money. But there is no way legally to restrict
that big money so long as the Supreme Court’s doctrine remains.
Senator BLUMENTHAL. I want to, in the time I have remaining,turn to a related issue, which is the damage done not only to democracy by Citizens United and some would say the only tangentially related social welfare organizations, because Citizens Uniteditself is not the sole cause of the problems we face, but also thedamage done to the Court itself by these decisions. And I worry
about the credibility and even legitimacy of the Court. I know you
have been a scholar, you have been a law clerk. I wonder if you
could talk a little bit about that area and about possibly also therelated area of a code of ethics that would be applied to the Supreme Court. We have talked about it here. Senator Durbin andothers have raised it, and I have as well. So let me ask you thatvery general question.
Mr. LESSIG. I frankly have been surprised in the last five to eight
years with the carelessness the Court has displayed about the needto nurture and preserve the public’s confidence in that institution
as being above the political fray. I think there is a willfulness that
historically, not just in this Court but across other courts acrossthe world, has led to the weakening of that kind of institution within a political system. So, you know, I think in the recent

32
Obamacare decision, it was an extraordinary act of political statesmanship, I think, that the Chief Justice did what the Chief Justicedid, and I think it mirrors what Chief Justice John Marshall didin the decision of Marbury v. Madison, in a way to decide the case,actually, I think scholars will say, in a way that really helped thecause of limiting the scope of the Government’s power, but in a waythat did not open up the institution to the charge that it was justbehaving politically, deciding a case favoring Republicans at a time
when Republicans controlled the Court. And the same thing, ofcourse, has happened the other way around.
So I am concerned that not all Justices are demonstrating thatkind of, I think, sensitivity and awareness, and I hope that this decision begins to remind other Justices on the Court of how important it is not just to decide the cases rightly, but to decide the cases
in a way that continues to earn the respect and confidence of theAmerican people in that extraordinarily important institution.
Senator BLUMENTHAL. And speaking extra—when Justices speakoutside the courtroom, outside their opinions, or take positions or
decline to conform to certain rules, all of it can affect the public
perception of the Court.
Mr. LESSIG. That is right. And, you know, one of the great—oneof the things I agree with Justice Scalia about is his desire not tohave cameras inside the courtroom, and one of the reasons I thinkthat is a great thing is that it minimizes the extent to which people
want to play to the public. And I think they should not want toplay to the public. There should be people who are happy, like Justice Souter was, to be completely unrecognized and to be able towalk around Washington without anybody coming up and saying,‘‘Justice, let me shake your hand.’’ They should be focused on thejob of deciding the cases in a way that is conforming to the law.
And I worry that as they spend their whole lives on these courts
and they live in this city where being well recognized and popular
is so important, that some of that corrupts the way that institution
begins to function as well.
Senator BLUMENTHAL. Well, I thank you and all the members of
this panel very much for your answers and your very helpful testimony today. I might just respectfully suggest that having camerasin the courtroom would not necessarily make them instantly recognizable as they walk around the streets of Washington, which isa good thing.
Mr. SHAPIRO. I have no problem with cameras in the courtroom.
[Laughter.]
Senator BLUMENTHAL. Thank you.
Chairman DURBIN. Thanks, Senator Blumenthal. This panel has
been very accommodating, and we will probably have a very brief
second round here, not as long as the first. I thank you for waiting.
Mr. Shapiro, I am trying to put this in the perspective of my life
as a public official, representing a State of close to 13 million people, about 500 miles long and an hour-and-a-half- to two-hourplane ride to head back to it, spending three or four days a week
in Washington, going home to try to serve 102 counties in theState, and considering the next political campaign, which may in
a State my size run in the neighborhood of $20 million. So at thetime you would announce for re-election, you are faced with raising

33$1 million a month, basically, to be competitive under the old rules,
before the arrival of the Super PACs.
Most Americans, I think, would be maybe a little embarrassed
but certainly surprised at how much time Members of Congress
spend talking about raising money and actually raising money. It
is an enormous commitment of time—time away from Washington,time away from your State, time away from your family, generally
spent with very nice people who, by and large, are not looking formuch but generally are in higher-income categories, trying to raise
enough money to be sure that at the end of the day your message
gets out in the campaign.
Now, air-drop in Super PACs, and you do not know what is goingto happen in the closing days. So far a couple of our colleagues
have faced $10 and $12 million of Super PAC negative advertisingunanswered in their election campaigns. That is the new worldthat we live in.
And so when you make the suggestion, as you have, that removing all limitations on the amount of money that can be donated toa campaign will lead to more people getting involved in the process
and more donations, I have to look at the record that was presented to the Supreme Court by Montana. The Montana Supreme
Court found that ‘‘the percentage of campaign contributions fromindividual voters drops sharply from 48 percent in States with restrictions on corporate spending to 23 percent in States without [restrictions].’’
Why? I think because unlimited contributions drive the fundraising business model away from small contributors to large contributions. And, second, small donors know their contributions will
have a substantially diminished impact when there are no limits.
So how do you respond, Mr. Shapiro, to others who say that the
opposite true when the facts say that it does not help to increase
voter participation and voter contributions?
Mr. SHAPIRO. Mr. Chairman, I sympathize with your plight, andI offer you a solution. Remove contribution caps, and you will
spend less time fundraising, as will all your colleagues.
Chairman DURBIN. If I get to know Sheldon Adelson.
Mr. SHAPIRO. There are plenty of billionaires on both sides.
Chairman DURBIN. Is that really——
Mr. SHAPIRO. George Clooney and——
Chairman DURBIN. Is that our goal, to find the richest people in
America and cozy up to them to finance our campaigns? Thatmakes us a better democracy?
Mr. SHAPIRO. Let voters decide based on knowing who is contributing. In 1968, the reason Gene McCarthy was able to stage his
challenge to LBJ was because he had three donors who gave seven
figures each. Without that, there would not be anything like that,or third-party——
Chairman DURBIN. I am not going to condone that, but when we
have Sheldon Whitehouse’s DISCLOSE bill up so that the voters
can decide based on who gives the money, we cannot get a single
vote—well, I guess we got a few, a handful of votes from the otherside of the aisle, but not enough.
Senator WHITEHOUSE. Not one.
Chairman DURBIN. Not one? All right.

34
Mr. SHAPIRO. Make the disclosure for really significant amounts
and not small businesses that donate and then have the IRS sicced
on them.
Chairman DURBIN. Well, I certainly do not think that is the case.
I think when you look at the statements made by leaders of theother party, consistently made, that disclosure is the best disinfectant and so forth, sunlight is the best disinfectant, clearly we havea very infected model right now because there is not much sunlightnor much disclosure, and we cannot get any bipartisan cooperation
to move us in that direction. So if ultimately the decision is to bemade by the voters, should they not at least have the information
about who is playing in this game?
Mr. SHAPIRO. I agree. That is why I propose raising or eliminating contribution limits along with setting the proper disclosure,and you can negotiate what that amount should be.
Senator WHITEHOUSE. What should it be? What should it be?
Mr. SHAPIRO. That would take a very difficult econometric analysis to perform. I am a simple constitutional lawyer . . . but on theorder of half a million or something like that. It is not $10,000, it
is not $2,500. It is where the interest in preventing the appearanceof corruption overwhelms the interest in preventing harassment ofvarious kinds.
Senator WHITEHOUSE. Do you know how much, say, a generaltreasurer’s race in the State of Rhode Island costs to run?
Mr. SHAPIRO. I do not.
Senator WHITEHOUSE. But you are willing to say that
$500,000——
Mr. SHAPIRO. It would depend on the race. I was talking abouta——Senator WHITEHOUSE. Presidential race?
Mr. SHAPIRO. No, not a Presidential for that amount. I do not
know. Like I said, I can pick numbers off the top of my head andI can pick on the fly right now, but——
Senator WHITEHOUSE. A congressional race, most congressionalraces come in for well less than $1 million. You are saying that you
should not have to disclose a $499,000 contribution to a Memberof Congress?
Mr. SHAPIRO. I am saying you set the amount for—maybe it differs on the State, maybe it differs on the race. I have not come herewith a set of—with a roster, with a schedule of what that would
be. It would have to be tailored——
Senator WHITEHOUSE. You have come here with a criticism of the
DISCLOSE Act that it sets the number in the wrong place. How
do you know that it sets it in the wrong place if you do not know
where that place is?
Mr. SHAPIRO. Just like the Supreme Court often says when it
rules in various directions, we do not know where the line is, but
this is clearly past it——
Senator WHITEHOUSE. And $10,000 is clearly an amount thatwould not influence an election?
Mr. SHAPIRO. Correct. When you are talking—when you are comparing it to the Sheldon Adelsons and the George Soroses of theworld, or the Koch brothers or whoever else, that is not a——35
Senator WHITEHOUSE. Even a congressional election, because it
applies to congressional races.
Mr. SHAPIRO. Maybe for city dog catcher. Maybe $10,000 should
be disclosable for a city dog catcher. But, again, you have to balance the interests, and that is—that is not a bright line you candraw. It is something that you have to measure and that has to bedebated about where that interest in knowing where that potential
appearance of corruption is strong enough to overwhelm otherwise
private individuals’ rights to speak their mind without fearing harassment from their neighbors.
Senator WHITEHOUSE. Well, we have——
Mr. SHAPIRO. Let alone from the Government.
Senator WHITEHOUSE. We have had a country where—let me justtell you that when I went into the DISCLOSE Act vote, as I cameout of the basement lobby, I passed a young man, a marine from
Pennsylvania, who was sitting in the lobby in a wheelchair with anumber of escorts around him to greet the Senators who weregoing by. We had asked that young man to go to Afghanistan, andwe had sent him down a road that had an improvised explosive device under it that blew both of his legs off. If we can ask that young
man to do that, we can darn well ask the Koch brothers to put up
with some impolite blogging.
Mr. SHAPIRO. I agree. The Koch brothers, yes.
[Applause.]
Mr. SHAPIRO. And George Clooney and George Soros and anybody that, as I said, is far above any line that I would draw.
Senator WHITEHOUSE. One other thing you said earlier, I wantto correct the record here. You said there was—I believe I wrote
it down accurately. You said there was an ‘‘exemption for unions’’
in the bill. I want to make sure that the record is clear there was
no exemption for unions in the bill. Unions, corporations, 501(c)s,billionaires, everybody is treated exactly the same in the bill. I
know that canard has kind of crept its way into the public debate,
but every time I have asked a colleague of mine to say where isit, they cannot find it. And the reason they cannot find it is because in a 19-page-long bill written in very big letters, it just is notthere to be found. And I want to make sure that that is clear forthe record. We did not put an exemption for unions into the bill.
Every organization is treated absolutely identically.
Chairman DURBIN. Senator Blumenthal.
Senator BLUMENTHAL. Thank you, Mr. Chairman. I just have acouple of follow-up questions, and I passed the same marine on my
way to vote, and certainly if you compare the sacrifices that are
made by the men and women who are fighting to uphold democracy
and serving and sacrificing for our freedoms, I would compare themnot only to the relatively minor inconvenience of disclosure, butalso to the choice they have as to whether to contribute in the firstplace. And part of the reason why we are such a great democracyis that we do shine that light of disclosure in a lot of areas, notjust in this one but in many corporate areas as well. When a company is a public company and making these contributions to a public process and a public institution I think well merits this kind of
disclosure.

36
But the question that I have for all the members of the panel is:
Put aside the laws that have been proposed to improve the system.
I am not satisfied that existing laws are being enforced sufficiently,
aggressively, and faithfully, whether the provisions of the Tax
Code, for example, or the current provisions that draw distinctions
between political activities and non-political activities are being
sufficiently well enforced. What is your view on that, Mr. Shapiro?
Mr. SHAPIRO. I have not studied the enforcement mechanisms. Ifthey are not being enforced, they should be. I am all for the ruleof law.
I will say that you cannot just brush aside the threat of harassment and vigilante action and the Government going after people
who have disclosed. Frank VanderSloot, for example, an Ohio businessman, was disclosed as having contributed against President
Obama, and all of a sudden has a raft of regulatory agencies goingafter him, even though he has never had any trouble, never committed a business crime. And that is not the only example of that.
Whether you are talking about the $100 donor to a campaign for
Prop. 8 in California—I happen to be against Prop. 8, but I do notthink that someone who donates $100 should lose their job for it.
Again, there are competing interests but we should be for maximizing speech rather than having government control. And do not
mistake this. What all of these programs are saying is that the government should control independent political speech and people
getting together at some point is too much speech.
Senator BLUMENTHAL. But disclosure is not control, is it?
Mr. SHAPIRO. Disclosure is not control. That is a different problem. You are right.
Senator BLUMENTHAL. So if you cannot draw the line at a particular amount, why not just require disclosure of everything?
Mr. SHAPIRO. Because there is no right, absolute right, to knowwhat all your neighbors are donating. It is a prudential concern
rather than a constitutional one at that point. It is possible to draw
a line. I am just saying I have not analyzed all of the different possible races and seen where that line should be drawn. But, youknow, after a study of this—and that can be negotiated and shouldbe negotiated politically—that line should be drawn where indeed
it only is the big boys that are putting their reputation on the line
rather than people donating $100 or $2,500.
Senator BLUMENTHAL. Thank you.
Chairman DURBIN. Thank you very much, Senator Blumenthal.
I thank the witnesses on this panel. For the record, the way thewitness panels are constructed, there are witnesses that are suggested by the majority side and by the minority side, and so there
is some balance in the testimony here. Mr. Shapiro, thank you forbeing here at the invitation of Senator Graham. I thank Professor
Lessig and Governor Roemer for being here to give us their input
on this important topic.
I want to note that there are over 400 people who have been attending this hearing, both in this room and in the overflow room,as an indication of the level of interest.
There is also another indication. We have had a number of organizations and individuals submitting statements for the record, including Americans for Campaign Reform, Common Cause, Demos,

37Free Speech for People, Move to Amend, People for the American
Way, Public Campaign, Public Citizen, Ben & Jerry’s, American
Sustainable Business Council, Center for Media and Democracy,
Washington Public Campaigns, Professor Jamie Raskin, Professor
Sierra Torres Bellisi, former North Carolina State Representative
Chris Haggerty, and Attorney Rick Hubbard of South Burlington,
Vermont. Without objection, I will add their statements to therecord, thanking the individuals and organizations for their important work.
[The information appears as a submission for the record.]
Chairman DURBIN. There may be some follow-up questions to thewitnesses—it happens—and I hope if you receive them that you
can, even on vacation, respond in a timely fashion. I want to especially thank your son for being a dutiful observer of this constitutional process. And if there are no further comments from my panel
or colleagues, I thank all the witnesses for participating and everyone in attendance on this important issue.
This hearing stands adjourned.
[Whereupon, at 4:30 p.m., the Subcommittee was adjourned.][Submissions for the record follow.]APPENDIXADDITIONAL MATERIAL SUBMITTED FOR THE RECORDWITNESS LIST

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40
PREPARED STATEMENTS OF HON. RICHARD J. DURBIN AND HON. PATRICK LEAHY
United States Senate Judiciary Committee
Subcommittee on the Constitution, Civil Rights and Human Rights
Senator Richard J. Durbin, Chairman"Taking Back Our Democracy:
Responding to Citizens United and the Rise of Super PACs"
Tuesday, July 24,2012

Opening Statement
Today we will examine the dramatic rise of spending by Super PACs that are largely funded bycorporations and wealthy individuals with special interests. We will also consider proposed
legislation and constitutional amendments designed to stem this dangerous tide.
Since the Supreme Court's decision in Citizens United and Speech Now, a later decision by the
DC Court of Appeals, we have witnessed the rapid rise of Super PACs and unprecedented
influence buying by corporations and wealthy individuals seeking to advance their agendas.

The Rise of Super PACs and Wealthy Donor Spending
In 2006, outside groups spent $70 million to influence federal midterm elections. Four years
later, outside groups spent $294 million to influence the federal midterm elections. That's fourtimes the amount they spent in 2006. By all accounts, these outside groups are prepared to breakthat record during this presidential election year.

Secret Money
Ordinary Americans often have no idea who is secretly bankrolling the omnipresent political
advertisements designed to influence their vote. In 2006, secret donors made up I % of all outside
spending. Four years later, after Citizens United and the rise of Super PACS, secret donors
rocketed to 44% of outside spending. And studies show that as the amount of money flooding
into campaigns increases, disclosure and transparency dramatically decreases.
In a democracy that values open debate and participation, voters should know who has paid forthe political ads designed to persuade them. We should call them "Super Secret PACs" because
the reality is that the public has shockingly little information about where they get theirresources.

American Oligarchs
The little that we have been able to learn about the major donors to these Super PACs is very
disturbing. Half of all Super PAC money being spent in this presidential election is coming fromjust 22 millionaires and billionaires. To be clear, I don't begrudge their business success. And
their voices and opinions should be heard. Theirs, however, are not the only voices and opinions
that should be heard.

41
Just because the wealthy donors behind Super PACs have achieved economic success doesn'tmean they have earned the right to buy control ofthe political agenda by drowning out all
opposing voices. Unfortunately, that is exactly what's happening.
According to a recent report in the journal of Campaigns & Elections, Super PACs threaten topurchase every last minute of available television advertising space for the fall election,
exponentially driving up the cost of these ads, especially in battleground states. As a result,voters may never hear directly from some state and local candidates, who could be kept off the
air entirely due to rising costs and the fact that they are not entitled to "reasonable access" to the
airwaves like federal candidates.
There are 314 million people in this country whose lives, jobs, safety, and health are impacted by
the decisions of the people they elect. Can we still proclaim to be the world's model for freeelections with open debate when we allow 22 wealthy people to control the terms ofthat debate
and silence the voices of millions of others?
The public may not know the agendas ofthe secret, wealthy donors behind these Super PACs,
but I can assure you that the politicians they've supported will- once they begin calling after theelection. Imagine hearing the following phrase from a Las Vegas casino magnate [Sheldon
Adelson], billionaire brothers and oil tycoons [Charles and David Koch], or the multimillionairehead of a southern retail empire [Art Pope]:"I spent millions to get you elected and there's plenty more where that came from ... But,
if you don't vote my way, I'll spend it against you the next time."
At that point, an elected official might very well just decide to forget about facts and figures,constituent letters, and town hall meetings.

Reform Is Urgently Needed: Fair Elections Now Act and DISCLOSE
There are a series oflegislative proposals that would stem this dangerous tide of secret, special
interest money that's flowing into our elections.

The Fair Elections Now Act
I introduced the Fair Elections Now Act, which would create a public financing system that will
free candidates from the dangerous reliance on Super PACs once and for all. Under Fair
Elections, viable candidates who qualify for the Fair Elections program would raise a maximumof $100 from any donor. These candidates would then receive matching funds and grants
sufficient to run a competitive campaign. Fair Elections would fundamentally reform our broken
system and put average citizens back in control of their elections and their country.

42
The DISCLOSE Act
Last week, the Senate voted on the DISCLOSE Act. A majority of the Senate, including every
member of this committee, voted to support the measure. I want to thank Senator Whitehousefor his leadership on this legislation.
The bill is simple. It would require Super PACs and other big spenders in elections to disclose
all donors who give $10,000 or more in any two year campaign period. In other words, it would
write into law the same basic concept of disclosure that the Supreme Court actually endorsed in
Citizens United.
Congress could pass these two bills right now and make a world of difference.
Need for Constitutional Amendments
But with a Supreme Court that has not been shy about overturning precedent and disregarding
Congressional intent, passing these very good pieces of legislation may not be enough. Aftermuch deliberation, I have reached the conclusion that a constitutional amendment is necessary toclean up our campaign finance system once for all. I know there are some who say it will be next
to impossible to pass a constitutional amendment on this issue. But I also know the history of ourcountry.
Slavery and the denial of basic freedoms for African Americans was the law ofthe land before
and after the Supreme Court's decision in Dred Scott. But many fought, bled, and died so that the
14th, 15 th , and 16th Amendments would insure that America lived up to its promise of equality forall.
Those fighting for women's suffrage were discouraged by the Supreme Court's ruling in Minor
v. Happersett, but years of activism were rewarded when the 19th Amendment was ratified. The
Supreme Court's decision in Breedlove v. Suttles affirmed the imposition of poll taxes thatprevented many African Americans and other poor citizens from voting in federal elections.
Those fighting for equal ballot access rallied to pass the 24th Amendment and their victory wascompleted when state poll taxes were invalidated by Harper v. Board ofElections.
It may be an uphill battle. It may take years of organizing and advocacy. But the passage of thethese five Amendments remind us that grassroots movements can put our country back on theright course after a Supreme Court decision -- like Citizens United -- gets it dead wrong.

That grassroots movement is well underway. This Subcommittee has received 1,959,063 petition
signatures from Americans representing every state in the Union in support of a constitutional
amendment to stop the pernicious influence of secret money from corporations and wealthy
special interests.

43
STATEMENT OF SENATOR PATRICK LEAHY (D-VT.)HEARING ON "TAKING BACK OUR DEMOCRACY: RESPONDING TO CITIZENS UNITEDAND THE RISE OF SUPER P ACs"JULY 24, 2012

Every American who has watched our elections or even tried to watch television over the last
two and half years has seen the corrosive effects ofthe Supreme Court's decision in Citizens
United. Few Supreme Court decisions in American history have had such a negative impact on
our political process. That decision by five justices in Citizens United to overturn a century oflaw designed to protect our elections from the corruption of corporate spending turned on its
head the idea of govemment of, by and for the people.
Nobody who has heard the barrage of negative advertisements from undisclosed andUnaccountable sources can deny the impact of Citizens United. Nobody who has strained to hear
the voices of the voters lost among the noise from SuperPACs can deny that by extending First
Amendment "rights" in the political process to corporations, five justices put at risk the rights ofindividual Americans to speak to each other and, crucially, to be heard.
Last month, those same five justices doubled down on Citizens United when they summarily
struck down a 100-year-old Montana state law barring corporate contributions. In doing so, theybroke down the last public safeguards preventing corporate megaphones from drowning out thevoices of American voters.
These Supreme Court decisions not only go against longstanding laws and legal precedents, butalso against common sense. Corporations, quite simply, are not people. Corporations do nothave the same rights, the same morals or the same interests. Corporations cannot vote in our
democracy. They are artificial legal constructs meant to facilitate business. The Founders
understood this. Vermonters and Americans across the country have long under-stood this. A
narrow majority on the Supreme Court apparently does not.
Like most Vermonters, I strongly believe that this was a harmful decision that needs to be fixed.
I have pressed to make fixing it a high priority of this Congress. and I will continue to work for
remedies. I have sought legislative remedies, and the harm of this decision is so threatening toour system that I also believe constitutional remedies should be evaluated. That is why I held thefirst congressional hearing on that terrible decision after it was issued. That is why I haveworked with Senator Whitehouse, Senator Schumer and others to craft legislation like the
DISCLOSE Act that could immediately address some of the worst effects of Citizens United.
And that is why I have worked with Senator Durbin, the Chairman of this subcommittee, toschedule today's hearing to look at proposals for fixing the damage done by Citizens United.
I thank Senator Durbin for holding this important hearing. He has been a leader not only on thisissue, but also in shedding light on the renewed effort in many states to deny millions ofAmericans access to the ballot box through voter purges and voter ID laws. It is astonishing andtroubling for our democracy to see efforts underway to restrict the right to vote for individuals
Americans, while corporations are empowered through secret spending to control the outcome ofour elections. We need to work to restore the right balance in our democracy to protect the form

44
of government Americans have fought and died for, what President Lincoln called ourgovernment of, by and for the people.
The path of American democracy over the last 236 years has been one toward greater inclusionand participation by all Americans. Yet a report released last week by the non-partisan Brennan
center concluded that newly-enacted voter ID laws alone will burden up to 10 millions voters.
Pennsylvania's voter ID law, for example, could disenfranchise over 750,000 voters even though
the state has told a court they have no evidence of in person voter fraud or even evidence it islikely to occur without their voter ID law. This Committee has received expert testimony that
voter ID laws will disenfranchise African-Americans, Hispanics, military veterans, college
students, the poor, and senior citizens. Many Americans associate barriers to voting with a darktime in our nation's history, when courageous and disenfranchised, yet resilient, citizens attacked
by dogs, blasted with water hoses, and beaten by mobs simply for attempting to register to vote.
1 am not alone in noting the disturbing irony of the contrast between the concerted partisan pushfor voter ID in many states, and a fact which is in focus in this hearing: It is becoming increasingly
difficult for ordinary, hardworking Americans to cast their votes, while billionaires suddenly are able tocontribute at will to shape election results, without having to 'show any 10' at all.
We cannot return to a time when discriminatory devices were used to exclude American citizens
from their democracy.
We also cannot back down from our efforts to ensure that the ability of Vermonters and all
Americans to participate in our elections is not undercut by wealthy corporations dominating all
mediums of advertising. The interests of the voters should control the outcomes in our elections,
not the race for secret money and who can collect the largest amount of unaccountable, secret
donations.
Addressing the effects of Citizens United should not be a partisan issue. It should be an issue foranybody who cares about our democracy. Regrettably that has not been the case and our efforts
have been stymied so far. Just last week, Republicans denied the American people an open,
public, and meaningful debate on the DISCLOSE Act, legislation that would restoretransparency and accountability to campaign finance laws by ensuring that all Americans know
who is paying for campaign ads. Despite a majority of support for this common sense
legislation, Republicans continued their years-long filibuster of the DISCLOSE Act, refusing toeven proceed to debate the bill in the Senate.
There is no reason a clear-cut reform like the DISCLOSE Act should not draw overwhelming
bipartisan support. From the depths of the Watergate scandal forward, until only recently, theprinciple of disclosure was a bipartisan value. Despite the clear impact of unaccountablecorporate campaign spending, a minority in the Senate consisting exclusively of Republicans
continues to prevent passage of this important law.
Why have they worked so hard against this bill? Why, when so many Senators of both parties
used to champion disclosure laws and supported knowing who is paying for campaign ads havethey continued to prevent us from considering this remedial legislation -legislation that theconservative justices on the Supreme Court themselves endorsed and thought would follow after
their disastrous opinion on Citizens Unitetfl Why, when the conservative Supreme Court justices

45
made clear even in their Citizens United decision that disclosure laws are constitutional does the
Senate Republican leadership insist on blocking this reform? Disclosure of who is paying forelection ads should not be kept secret from the public. In a democracy, our ballots should besecret - not massive corporate campaign contributions.
When an individual donates money directly to a political candidate, our donation is not hidden.
It is publicly disclosed. Yet those who oppose the DISCLOSE Act are supporting special rights
for corporations and wealthy donors to use SuperPACs to funnel secret, massive, non-disclosed
donations to political campaigns. They are creating a special right to launder money through theuse of loopholes opened up by Citizens United. Nobody has answered why those funding theseSuperPAC's should not be bound by the same disclosure rules for giving directly to campaigns.
Public disclosure of donations to candidates has never chilled campaign funding, and has neverprevented millions of Americans from participating freely and openly in our elections.
Vermont is a small state. It would not take more than a tiny fraction of the corporate money
being spent in other states to outspend all of our local candidates combined. I know that thepeople of Vermont, like all Americans, take seriously their civic duty to choose wisely on
Election Day. That is why more than 60 Vermont towns passed resolutions on Town Meeting
Day calling for action to address Citizens United. Like all Vermonters, I cherish the voters' rolein the democratic process and am a staunch believer in the First Amendment. The rights ofVermonters and all Americans to speak to each other and to be heard should not be undercut by
massive anonymous and corporate spending.
I look forward to hearing testimony from our witnesses today looking at how we can undo thedamage caused by the Citizens United decision. I remain open to any remedy including
constitutional remedies - that can help us restore the right balance to our democracy and protect
the right of every American to participate meaningfully in free and fair elections.

#####

46
PREPARED STATEMENTS OF WITNESSES
July 24, 2012
Contact: Iennifer_Donohue@baucus.senate.gov

Testimony of U.S. Senator Max Baucus, Montana
Senate Judiciary Committee
Subcommittee on the Constitution, Civil Rights and Human Rights
Hearing on Taking Back Our Democracy: Responding to Citizens United and the Rise ofSuperPACs

President Franklin Delano Roosevelt once said, "The ultimate rulers of our democracy
are not a President and Senators and Congressmen and government officials, but the voters of
this country."

I sit before you today on behalf of those voters - the nearly I million Montanans I workfor, and over 1.7 million Americans we all serve who have signed a petition calling for aconstitutional amendment this committee is considering today.

That's right, 1.7 million signatures. And each one is a mother, a father, an employer, aveteran, a school teacher, an American we were sent here to serve.

As a Montanan, this issue is deeply personal to me.

At the top of our state capital building in Helena sits a beautiful copper dome. Nearly acentury ago, that copper dome wasn't just for decoration. It was a symbol of the copper barons
and th~ir ultimate power to decide who represented the people of Montana.

Page 1 of4

47
While miners risked their lives working thousands offeet below the earth, the copperkings lived high on the hog.
Corporations were literally buying elections.

In 1899 Copper Baron William Andrews Clark, bribed the state legislature into
appointing him to serve here in the U.S Senate. The scandal led to the passage of the 17tf1
Amendment to our constitution - the amendment that gave each one ofus the honor of being
elected to serve by the popular vote of the people of our states.

In his own defense, Clark is famously purported to have said, "I never bought a man who
wasn't for sale."So, the people of Montana responded with one voice loud and clear: 'we are not for sale.'Montanans took democracy into their own hands and passed laws to keep their elections
off the market and in the rumds of the people.

But today, in the latest aftermath of Citizens United, the Supreme Court has stuck down
those very laws.

Once again, the essence of our democracy is being threatened. And once again aconstitutional amendment is needed to restore balance and put the ultimate power back in thehands of the people.

Page 2of4

48
In a 2012 poll, sixty-three percent of Americans said corporations and unions should not

be able to spend unlimited amounts of money in elections. The people we work for believe thatstate and local governments should be able to respond to corruptive behavior.

The surest way to get at the heart of the Supreme Court ruling is a constitutional
amendment.

In the Federalist Papers, James Madison noted that there would be circumstances when"useful alterations [to the Constitution] will be suggested by experience."

Still this is a process that requires significant deliberation. It should. I do not take aproposal to amend the constitution lightly. I agree with James Madison that amending theConstitution should be done only on "great and extraordinary occaSions."

But I believe this is one of those occasions. And Congress owes it to the American people
to fully study, discuss and debate the merits of a constitutional amendment.

My proposal for a Constitutional amendment will right the wrong of Citizens United. My
amendment will restore Congress' and States' ability to regulate political spending bycorporations and labor in elections. It will give states like Montana the power to once again say:'we are not for sale.'

Page 3 of4

49
It's clear that action is needed to restore Americans' faith. in our political and electoral
process. I urge my colleagues to join me in supporting this amendment.

Page 4of4

50
Testimony of Senator Bernard Sanders
Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights and Human Rights
Hearing on "Taking Back Our Democracy:
Responding to Citizens United and the Rise of Super PACs"
July 24, 2012
Mr. Chairman, thank you for convening a hearing on the enormously important issue of "Taking
Back Our Democracy." Unfortunately, that title exactly describes the challenge facing us today.
The history of this country has been the drive towards a more and more inclusive democracy-a
democracy which would fulfill Abraham Lincoln's beautiful phraseology at Gettysburg in which
he described America as a nation "of the people by the people for the people." Lincoln's vision
has endured throughout the ages, and many courageous Americans put their lives on the line
defending that vision: "Of the people, by the people, for the people."
We all know American democracy has not always lived up to this ideal. When this country was
founded, only white male property owners over age 21 could vote. But people fought to changethat and we became a more inclusive democracy. After the Civil War, we amended theConstitution to allow non-white men to vote. We became a more inclusive democracy. In 1920,
after years of struggle and against enormous opposition, we finally ratified the Nineteenth
Amendment, guaranteeing women the right to vote. We became a more inclusive democracy.
In 1965, under the leadership of Martin Luther King, Jr. and others, the great civil rights
movement finally succeeded in outlawing racism at the ballot box and LBJ signed the Voting
Rights Act. Black people in our country could not be denied the right to vote. We became amore inclusive democracy. One year after that, the Supreme Court ruled that the poll tax was
unconstitutional, that people could not be denied the right to vote because they were low-income.
We became a more inclusive democracy. In 1971, young people throughout the country said;"we are being drafted to go to Vietnam and get killed, but we don't even have the right to vote."
The voting age was lowered to 18. We became a more inclusive democracy.
Mr. Chairman, the democratic foundations of our country are now facing the most severe attack,both economically and politically, that we have seen in the modern history of our country.

Tragically, we are well on our way where America is moving toward an oligarchic form ofgovernment - where virtually all economic and political power rest with a handful of very
wealthy families. This is a trend we must reverse.
Economically, the United States today has, by far, the most unequal distribution of wealth andincome of any major country on earth and that inequality is worse today in America than at any
time since the late 1920s.
Today, the wealthiest 400 individuals own more wealth than the bottom half of America - 150
million people.

51
Today, one family, the Walton family of Wal-Mart fame, with $89 billion, own more wealththan the bottom 40 percent of America. One family owns more wealth than the bottom 40
percent.
Today, the top one percent own 40 percent of all wealth, while the bottom sixty percent owns
less than 2 percent. Incredibly, the bottom 40 percent of all Americans own just 3/10 of one
percent of the wealth of the country.
Between 1980 and 2005, 80 percent of all new income created in this country went to the top 1
percent. In 20 10 alone, 93 percent of all new income went to the top 1 percent. This is not
American democracy. This is American oligarchy.
That is what is going on economically in this country. A handful of billionaires own a significant
part of the wealth of America and have enormous control over our economy. What the Supreme
Court did in Citizens United said to these very same billionaires: "You own and control the
economy, you own Wall Street, you own the coal companies, you own the oil companies. Now,
for a very small percentage of your wealth, we're going to give you the opportunity to own the
United States government." That is the essence of what Citizens United is all about.
Let's be clear. Why should we be surprised that one family, worth $50 billion, is prepared tospend $400 million in this election to protect their interests? That's a small investment for themand a good investment. But it is not only the Koch brothers.

Mr. Chairman, there are at least twenty-three billionaire families who have contributed at least$250,000 each into the political process up to now;! my guess is that number is really muchgreater because many of these contributions are made in secret.
The constitutional amendment that Congressman Deutch and I have introduced, S. J. Res. 33,
states the following:
For-profit corporations are not people, and are not entitled to any rights under theConstitution.
For-profit corporations are entities of the states, and are subject to regulation by
the legislatures of the states, so long as the regulations do not limit the freedom of
the press.
F or-profit corporations are prohibited from making contributions or expendituresin political campaigns.
Congress and the states have the right to regulate and limit all politicalexpenditures and contributions, including those made by a candidate.

1 See Appendix 1.

52
I'm proud to say the American people are making their voices heard on this issue-they are
telling us loud and clear it is time to reverse the trend. Six states, including my home state ofVermont, have passed resolutions asking us to pass a constitutional amendment to overturn
Citizens United. More than 200 local governments have done the same, including many inVermont. I'm proud to sponsor one such amendment. My colleagues here, Sen. Baucus, Sen.
Udall, and Congresswoman Edwards, all have good amendments, and I thank them for their hard
work on this issue.

53
APPENDIX I

America for Sale:
A Report on Billionaires Buying the2012 Election

U.S. Senator Bernie Sanders (I-Vt.)
Washington, DC

54
Billionaires buying the 2012 elections have a combined $146 billion in wealth, morethan the bottom 42.5% of American households - nearly 50 million families.
•

So far this year, 26 billionaires have donated more than $61 million to super PACs,
according to the Center for Responsive Politics. And, that's only what has been
publica\ly disclosed.

•This $61 million does not include about $100 million that Sheldon Adelson has said
that he is willing to spend to defeat President Obama; or the $400 million that the
Koch brothers have pledged to spend during the 2012 election season.

•

These 26 billionaires have a combined net worth of$146 billion, which is more thanthe bottom 42.5 percent of American households (equal to nearly 50 million families
in the United States).
(Sources: Federal Reserve's Survey of Consumer Finances published in June 2012;
and the Forbes billionaire list of April 2012. Sylvia A. Allegretto, an economist at
the University of California, Berkeley helped us gather the data from the Federal
Reserve study to come up with these statistics.)
Here is a list ofthe billionaires:

1. Sheldon Adelson, owner of the Las Vegas Sands Casino, is worth nearly $25 billion,
making him the 14th wealthiest person in the world and the 7th richest person in
America.
While median family income plummeted by nearly 40% from 2007-2010, Mr.
Adelson has experienced a nearly eightfold increase in his wealth over the past three
years (from $3.4 billion to $24.9 billion).
Forbes recently reported that Adelson is willing to spend a "limitless" amount ofmoney or more than $100 million to help defeat President Obama in November.
While $100 million sounds like a lot, it equals the same percentage of Adelson's
wealth that $300 to $400 does for the typical middle class family (with a net worth ofabout $77,000).
Sheldon Adelson owns more wealth than the bottom 40.2% of American households
or 47.2 million American families.
2. The Kochs (David, Charles, and William) are worth a combined $54 billion,
according to Forbes. They have pledged to spend about $400 million during the2012 election season.
3. Jim Walton is worth $23.7 billion. He has donated $300,000 to super PACs in
2012.

55
4. Harold Simmons is worth $9 billion. He has donated $15.2 million to super PACs
this year.
5. Peter Thiel is worth $1.5 billion. He has donated $6.7 million to Super PACs thisyear.
6. Jerrold Perenchio is worth $2.3 billion. He has donated $2.6 million to super PACs
this year.
7. Kenneth Griffin is worth $3 billion and he has given $2.08 million to super PACs in2012.
8. James Simons is worth $10.7 billion and he has given $1.5 million to super Pacs thisyear.
9. Julian Robertson is worth $2.5 billion and he has given $1.25 million to super PACs
this year.
10. Robert Rowling is worth $4.8 billion and he has given $1.1 million to super PACs.
11. John Paulson, the hedge fund manager who made his fortune betting that the subprime mortgage market would collapse, is worth $12.5 billion. He has donated $1
million to super PACs.
12. Richard and J.W. Marriott are worth a combined $3.1 billion and they have donated$2 million to super PACs this year.
13. James Davis is worth $1.9 billion and he has given $1 million to super PACs thisyear.
14. Harold Hamm is worth $11 billion and he has given $985,000 to super PACs thisyear.
15. Kenny Trout is worth more than $1.2 billion and he has given $900,000 to super
PACs this year.
16. Louis Bacon is worth $1.4 billion and he has given $500,000 to super PACs thisyear.
17. Bruce Kovner is worth $4.5 billion and he has given $500,000 to super PACs thisyear.
18. Warren Stephens is worth $2.7 billion and he has given $500,000 to super PACs this
year.

56
19. David Tepper is worth $5.1 billion and he has given $375,000 to super PACs thisyear.
20. Samuel Zell is worth $4.9 billion and he has given $270,000 to super PACs thisyear.
21. Leslie Wexner is worth $4.3 billion and he has given $250,000 to super PACs thisyear.
22. Charles Schwab is worth $3.5 billion and he has given $250,000 to super PACs thisyear.
23. KeIcy Warren is worth $2.3 billion and he has given $250,000 to super PACs this
year.

57
Testimony of Senator Tom Udall
Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights
Hearing on "Taking Back Our Democracy:
Responding to Citizens United and the Rise of Super PACs"
July 24, 2012
Good afternoon Chainnan Durbin, Ranking Member Graham, and members of the
Subcommittee.
Thank you for holding this important hearing.
Today's hearing comes at an ideal time, as the 2012 election cycle provides a perfect example ofjust how broken our national campaign finance system really is. The integrity of our elections,and ultimately our governance, depends on a vigorous debate in which American citizens truly
have a voice. Unfortunately, our elections no longer focus on the needs and interests ofindividual voters, but are instead shaped by multi-million dollar ad campaigns funded by special
interest groups with seemingly limitless resources.

In January 201 0, the Supreme Court issued its opinion in Citizens United v. FEC. Two months
later, the DC Circuit Court of Appeals decided the SpeechNow v. FEC case. These two cases
opened the door to Super PACs. Millions of dollars now pour into negative and misleading
campaign ads, often without disclosing the true source of the donations.
But our campaign finance system was hardly a model of democracy before these opinions. We
have been on this dangerous path for a long time. The Citizens United and SpeechNow decisions
may have picked up the pace, but the Court laid the groundwork many years ago.
We can go all the way back to 1976. That year, the Court held in Buckley v. Valeo that
restricting campaign spending, as well as limiting independent expenditures, violates the First
Amendment right to free speech. In effect, the Court said that money and speech are the samething.
This is a flawed premise, but the Court has continued to rely on it to issue more disastrous
opinions, such as Citizens United and Speech Now. Unfortunately, the outcome is hardly
surprising - Americans' right to free speech is now detennined by their net worth.
But the founding principle of this nation is that all Americans deserve the same constitutionally
guaranteed rights. We don't tell the wealthy they can choose any religion, but the poor can only
pick from a few. But that's exactly what the Court said about the freedom of speech. For
average Americans, they get one vote. They go to the polls and cast their ballot with millions ofothers. But for the wealthy, and the super wealthy. Buckley says that they can spend unlimited
amounts of money to influence the outcome of our elections. And now, with Citizens United,that right has been extended to corporations and other special interests.
The damage is clear. Elections become more about the quantity of cash, and less about thequality of ideas. More about special interests. and less about public service.
1

58
We cannot truly fix this broken system until we undo the flawed, inherently undemocratic
premise that spending money on elections is the same thing as exercising free speech. That can
only be achieved in two ways. The Court could overturn Buckley and the subsequent decisions
based on it - which seems highly unlikely given its current ideological makeup. Or we amend
the Constitution. To not only overturn the previous bad Court decisions, but to also prevent
future ones. Until then, we will fall short of the real reform that is needed.
That is why Senator Bennet and I, along with several members of this subcommittee, introduced
S.J. Res. 29 last November. We're up to 23 cosponsors, with several other senators expressing
support for a constitutional amendment in floor speeches and press interviews.
This amendment is similar to bipartisan proposals in previous Congresses. It would restore theauthority of Congress stripped by the Court - to regulate the raising and spending of money forfederal political campaigns, including independent expenditures, and it would allow states to do
so at their level. It would not dictate any specific policies or regulations. But, it would allow
Congress to pass sensible campaign finance reform legislation that withstands constitutional
challenges.
In The Federalist No. 49, James Madison argued that the Constitution should be amended only
on "great and extraordinary occasions." I believe we have reached one of those occasions. In
today's political campaigns, our free and fair elections - a founding principle of our great
democracy - are for sale to the highest bidder.
I know amending the Constitution is difficult. And it should be. Last week during the debate on
the DISCLOSE Act, Chairman Leahy commented that we must pass that bill now because of the"years and years that a constitutional amendment might take."
But those "years and years" started decades ago. There is a long - and bipartisan - history here.
Many of our predecessors from both parties understood the corrosive effect money has on ourpolitical system. They spent years championing the cause.
In 1983 - the 98th Congress Senator Ted Stevens introduced an amendment aimed at
overturning Buckley. And in every Congress from the 99th to the I08th, Senator Fritz Hollings
introduced bipartisan constitutional amendments similar to mine. After he retired, Senators
Schumer and Cochran continued the effort in the I09th Congress.
And that was before the Citizens United decision. Before things went from bad to worse. The
out of control spending since that decision has further poisoned our elections. Fortunately, it has
also ignited a broad movement to amend the Constitution.
I participated in a panel discussion in January with several activists in this movement. One ofthe panelists, Maryland State Senator Jamie Raskin, was asked about overcoming the difficultyof amending the Constitution. Jamie said that "a constitutional amendment always seems
impossible until it becomes inevitable." 1 think we are finally reaching the point of inevitability.

2

59
Across the country, more than 275 local resolutions have passed calling for a constitutional
amendment to overturn Citizens United. Legislatures in six states - California, Maryland,
Hawaii, Vermont, Rhode Island, and my home state of New Mexico - have called on Congress
to send an amendment to the states for ratification. Many more states have similar resolutions
pending.
Over 1.9 million citizens have signed petitions in support of an amendment. More than ahundred organizations, under the banner of United For the People, are advocating forconstitutional remedies.
This grassroots movement is yielding progress. In addition to our Senate amendments, several
other campaign finance related amendments have been introduced in the House.
But an amendment can only succeed if Republicans join us in this effort, as they have in the past.
I know the political climate of an election year makes things even more difficult, but I'm hopefulthat we can work together and reach consensus on a bipartisan constitutional amendment that canbe introduced early in the next Congress.
We must do something. The voice of the people is clear, and so is their 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%.
Since his retirement, Senator Hollings has continued to call for passage of an amendment. Afterthe Citizens United decision, he wrote on The Huffington Post that, "Like a dog chasing its tail,Congress has tried for thirty-five years to control spending in federal elections, only to be
thwarted by the Supreme Court intent on equating speech with money. To return to Madison's
freedom of speech, Congress needs to pass a Joint Resolution amending the Constitution toauthorize Congress to limit or control spending in federal elections."
Senator Hollings also recognized the deterioration of our legislative branch due to the increasing
influence of money on our elections. In another Huffington Post piece, Senator Hollings wrote:"Money has not only destroyed bi-partisanship but corrupted the Senate. Not the
senators, but the system. In 1966 when I came to the Senate, Mike Mansfield, theLeader, had a roll call every Monday morning at 9:00 o'clock in order to be
assured ofa quorum to do business. And he kept us in until5:00 o'clock Friday
so that we got a week's work in ... Today, there's no real work on Mondays andFridays, but we fly out to California early Friday morning for a luncheon
fundraiser, a Friday evening fundraiser, making individual money appointments
on Saturday and a fundraising breakfast on Monday morning, flying back forperhaps a roll call Monday evening."
I agree with his assessment, and also remember when fundraising wasn't the priority it istoday. My father was elected to Congress in 1954. I was in first grade. And thelegislative branch was a Citizens' Congress. Members were in Washington for six

360
months, and then they went home for six months and worked at their profession. But
during those six months in session, Congress focused on legislating.
And unlike today, where it's a weekly race to get out of town every Thursday, everyonesocialized. I remember there were Saturday night potlucks with many members of Congress andtheir families. My mom told me she didn't even know who was a Republican and who was a
Democrat. When you socialize like this on the weekend, it makes it much harder to attack eachother the following week on the House or Senate floor. Unlike the political climate we're intoday, there was a willingness to put partisanship aside for the common good.
Unfortunately, our current campaign finance system has locked members of Congress into an
endless campaign cycle. Elected officials spend far too much time raising money for campaigns,
and not enough time carefully considering legislation or listening to constituents. The drive toraise money is constant, and allowing vast new amounts of special interest money into thesystem will only increase the pressure. This causes a deterioration of Congress's ability tofunction, including its ability to adequately represent and respond to its constituents.
As the money raised and spent on campaigns by special interests continues to climb, members ofCongress will have to devote more time trying to keep up in the fundraising race. It is no wonder
that, as the pursuit of campaign money has come to dominate politics, the American people havebecome increasingly dissatisfied with Congress' performance.
The pressure to raise money also discourages many qualified Americans from running for office.
After the 2010 elections, former U.S. Senators Warren Rudman (R-NH) and Tim Wirth (D-CO)
published a joint op-ed in which they state:"Ifthere's one reason for leaving [the Senate] that both Senators [George]
Voinovich [R-OH] and [Evan] Bayh [D-IN]- and ourselves in our time - share incommon, it's money. [They] are just the latest in a stream of moderate Senators
who are too fed up to seek another term. Congress is stuck in the mud of strident
partisanship, excessive ideology, never-ending campaigns, and - at the heart of it
all- a corrosive system of private campaign funding and the constant fundraising
it demands."
Money has poisoned our political system. And the Supreme Court has incorrectly equated thatmoney with speech, leaving us with one option for real reform. We must work towards aconstitutional amendment that will restore integrity to our elections and legislative process. We,
as Americans, believe in government "of the people, by the people, for the people." Generationsof Americans before us have spoken out, worked tirelessly, and even given up their lives so that
we might have the chance to have such a government. We cannot sit by as that ideal is lost.
Thank you again for holding this hearing.

4

61
TESTIMONY OF
CHARLES "BUDDY" ROEMERFORMER CONGRESSMAN AND GOVERNOR OF LOUISIANAAND PRESIDENTIAL CANDIDATESENATE JUDICIARY COMMITTEE,SUBCOMMITTEE ON
THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTSHEARING"TAKING BACK OUR DEMOCRACY:RESPONDING TO CITIZENS UNITED AND THERISE OF SUPER PACS."JULY 24, 2012

During this primary season in which I was a candidate for the Republican nomination for
President and, failing that, a candidate for the Americans Elect nomination, much was made by
the want-to-be presidents about how Washington DC was broken.
Broken? An unreadable tax code apparently written by and for special interests; the exporting ofAmerican manufacturing jobs overseas and subsidizing corporations to facilitate that
outsourcing; an inability to exhibit budget discipline or prioritization over the next ten years in
the Administration's own pro forma budget proposals with a growth of debt faster than economic
growth ofthe nation; the downgrading of the national credit rating; bank "reform" that failed torein in the so-called "too big to fail" that allowed the top banks to have a larger percentage ofdeposits after "reform" than before; a supposed bank reform that failed to restore the protections
ofthe Glass-Steagall Act and refused to require capital ratios to rise with asset growth; healthcare reform that retained pharmaceutical and insurance monopolies entrenched in law; addiction
to oil from the M;ddle East with no appare.nt energy strategy: 42 consecutive yc;.[; of a tradeimbalance as we monetized our debt; and devaiuing our currency. I cuuld go on.
Broken? Of course.
A nation in trouble? Of course.
A cry for leadership? Of course.
A time for unity and cooperation? Of course.

62
But I take a different approach to this "it's broken, let's fix it" path. There is a biggcr, tougher,
more pervasive issue than being broken: institutional corruption, or put another way, "beingbought" by someone other than "the people". When the special interests have nevcr done betterand are in command of funding those who would repair the system, how much rcpair will get
done? As the only person running for President who was elected both as Congressman and as
Governor, it is my belief that Washington DC is not just broken. It is bought, rented, leascd,
owned by the money givers. Special interests, the bundlers, PACs, Super PACs, lobbyists, theWall Strect bankcrs, the pharmaceuticals, the corporate giants, the insurance companies,
organized labor, the GSE's like Fannie and Freddie, energy companies, on and on and on and on.
And this is not about one party vcrsus the other, or about one person or anothcr. It is aboutsystemic and institutional corruption where thc size of your check rather than the strength ofyour need or idea determinc your place in line.
Corruption becomes institutional when those involved can pretend that it docsn't exist or that it
doesn't affect them or that it has always becn this way, or even that it yields a good outcome forthe nation. Has it? Institutional corruption is when a committee membership means that yourfundraisers cater to a select list of invitees - all regulated by your committee. Institutional
corruption mcans that one of your primc options for life after public service is to represent as alobbyist in Congress the very companies, organizations, and interests you regulated as an elected
official and to do so when your contacts and relationships are fresh and strong. It is institutional
corruption when those who raisc questions are shunned or ignored by the body.
Outsidc these walls, the public's pcrccption is that not only is Congress a do-nothing institution,
but that it is bought and paid for as welL And, in politics, perception is reality, and theperception is that it is getting worse, not better. The numbers are not yet in for thc 2012 election
cycle, but let's look at 4 years ago where we do have at least partial numbers.
When Senator McCain opposed then Senator Obama, both candidates received more campaign
contributions from P ACs and lobbyists from Washington DC and its environs than from thecontributions of all sources in 32 states combined. The largest corporate giver to candidates
including the Presidential candidatcs four years ago was General Electric. How did that work fortheir shareholders? $5.2 Billion of domestic profit beforc taxes year before last and General
Electric paid not one penny in Federal Incomc tax. And the largest contributor among banks andfinanc;al institttion~? A little firm called Goldman Sachs. Maybe thaI's hew you get "bankrcform" that fails to eliminate "too big to fail", that bails out the biggest banks in America,
refuses to rc-instate Glass-Steagall, and allows the Department of Justice to spend more time on
Barry Bonds and Roger Clemens than on the veracity of the testimony of major bank CEOs.
With the advent of Super P ACs and tax -exempt organizations of "indcpendent" status, theamount and percentage of big corporate, special intercst money fueling the debate has increased
exponentially. The Supreme Court has ruled that these third-party, independent-expenditures, if
not coordinatcd with a candidate, cannot be regulated as they give no appearance of corruption as2

63
direct contributions can and do. Is it coordination when Mitt Romney addresses the fundraiserfor his own Super PACs? What bout when Rick Santorum wins a Midwest primary and has thelargest contributor of his Super PACc appear on the victory stage election night directly behindthe speaking candidate? When the President allows his team members helping him run his
administration's programs to solicit funds for his Super PAC? Cooperation, utilizing the sameplaybook, managing content and timing either directly or indirectly are all components ofcoordination it seems to me.
I've managed more than forty campaigns for others in my younger life - Congress, Governor,
US Senate races, and I've personally run for office successfully in seven, separate elections. For
more than 40 years, I have been involved in the debate about money and politics. I have nevertried to get money out of politics and am not trying to do so now. Money is a commodity that canbe used to foster debate and the enlightenment that comes there from. I have promoted and voted
for and practiced full disclosure as the essential, most important step in revealing the power ofmoney in the political debate. I still believe that. Others with a less conservative persuasion inthis matter have promoted broad limits in the amount and source of political financial
contributions.
The bad news is that now, we have neither limits nor disclosure nor truly independent
expenditures. This dependence on the special interest money has helped paralyze our nation. We
need action for the benefit of our neighbors, yet we have become a Republic representing only
those with big checks, maintaining a status-quo, a gridlock if you will, that rewards the victors
and turns a deaf ear to the victims.
The people know what's happening and it is why they don't give any more. They feel that theirsmall checks aren't needed and won't make a difference. Being out of office for 20 years andhappily and successfully engaged in community banking far away from Washington, I too began
to see the corruption of special interest money grow and its negative impact on meaningfulrefonn: banking, tax, budget, housing, medical, trade.
It's why I ran for president. We wanted to get campaign refonn as the first priority for a new
Administration. Without refonn, gridlock and status quo win, and we lose. So we deliberately
adopted a financial platfonn of both full disclosure and tight limits on giving, hoping to attract
the average person. We had a $100 maximum on an" individual's contribution. We ac(;cpt~d no
PAC contributions, just as I had done as Congressman and as Governor. We fully disclosed allcontributions regardless of size. We accepted no corporate contributions. We hoped to attract thesmall, clean contributions of plain and average Americans, maybe 3 million at $100 each for a
total of $300 million which would beat the candidates of either Party, we believed. Weak
President, weak opposition is the way we saw it in December of 20 I O. And there was no one
fighting for campaign refonn.

3

64
The internet phenomenon would get us started, and the debates would put wind into our sails, weplanned. As it turned out, we didn't get invited to a single one of the 23 nationally televised
debates. We did achieve matching funds, raised $800,000 with contributors from all 50-states
averaging nearly $50 per contribution and had 7% in a national poll the wcek bcforc the failureof Americans Elect when we had to drop out.
During the campaign, I said that my first bill before Congress would be Campaign Refonn; thatthe necessary actions rcquired to start this economic cngine (Tax, Budgct, Mcdical, Banking,Trade, Energy, and Regulatory Refonn) would not be possible with the special interests owning
the Congress or the White House, so we had to lead with refonn. The list of content for thisRefonn Bill would include (I) full disclosure, (2) 48-hour reporting, (3) no financial
contributions or financial assistance from rcgistered lobbyists, (4) PAC contributions be limited
to that of individuals, (5) Establish a low threshold definition for "coordination" of third Party
expenditures and have the same full disclosure and reporting requirements as those for dircct
contributions, (6) disallow lobbying by fonner members for a period of 5-years after retiremcnt,
and (7) criminal penaltics for thc willful violations of these conditions.
Additionally, I have grown to like the use of public funds for candidates for Federal office whomeet a standard of fundraising of $100 contributions. These seven measures put meat on thebones ofrefonn and give an opportunity for "wc the people" to fund campaigns.
I recommend that we work simultancously on statutory and constitutional efforts to increasc thc
public discourse while revealing the special interests without limiting the right to free speech.
An appropriate Constitutional Amendment could be required as we work through this complex
problem, but much can be done without a Constitutional Amendment. The time required for aconstitutional approach is uncertain and appropriate content needs full scrutiny so I see the need
to follow a two-initiativc approach at the same time: statutorily and constitutionally. We cannot
wait as a nation, so we must have a two-pronged effort from the beginning: an immediate
correction maximizing the chance for real people to get re-involved and re-move the gridlock
addiction fostered by the special interests who dominate fundraising (my seven point plan for
example), while constitutional efforts are coordinated.

We have not picked on events or parties or personalities who are corrupt or who have beenbought by the special interest checks. That's not the problem. The problem is a system that is
corrupt and the corruption of an honored in~titution of which you are a member. It will not stand.
More and more of us are leaving our day jobs and our homes and fighting for the restoration of
our Republic. A group of us have started The Refonn Project, a not for profit organization
designed to be engaged in the debate, to foster action and refonn, and to stand with those
attacked by the special interest, status quo gridlockers.
Neither party has embraced needed refonn. Both major parties are addicted to the special interest
money. President Truman, a Democrat, and Teddy Roosevelt, a Rcpublican, would have4

65
surveyed this landscape of special interest money and hidden contributions and gridlock within
America in trouble and wondered what has happened to our nation.
Let me answer their question. Nothing is wrong with America that we cannot correct, strengthen
and re-build. We must do it together. We constitutionally must allow money to fuel debate anddiscourse it is a part of our precious liberty --, but the funds must comc from the people, notsolely or primarily from the special interests if we are to can ourselves a "Republic". At aminimum, we must reveal the pervasive presence of special interest money, because it falls inlove with itself, requires attention and feeding and, as a result, negatively impacts our neighbors
in times of real need.
We can do this. Let us begin.

5

66
Testimony before the U.S. Senate Judiciary Committee's Subcommittee on theConstitution, Civil Rights, and Human Rights
lIya Shapiro
Senior Fellow in Constitutional Studies, Cato Institute
July 24, 2012
Chainnen Durbin and Leahy, Ranking Member Graham, and distinguishedmembers of the Subcommittee, thank you for this opportunity to discuss the regulation ofpolitical campaigns.
By way of overview, let me note that Citizens United is one of the mostmisunderstood high-profile cases ever, and so my testimony will review what the caseactually said, briefly opine on the constitutional amendments and legislation proposed in
response, and outline a better solution to our unworkable campaign finance regime.
Now, Citizens United is both more and less important than you might think. It's
more important because, beyond whatever effect it has on the amount of corporate orunion money in politics, it has revealed the instability of our current system. It's lessimportant because it doesn't stand for half of what many people say it does.
Take for example President Obama's famous statement that the decision"reversed a century of law that I believe will open the floodgates of special interestsincluding foreign corporations-to spend without limit in our elections."! In that
sentence, the fonner constitutional law professor stated four errors of constitutional law.
First, Citizens United didn't reverse a century of law, but 20 years at most. The
president was referring to the Tillman Act of 1907, which prohibited corporate donations
to candidates and parties. Citizens United didn't touch that issue. Instead, the overturned
precedent was a 1990 case that, for the first and only time, allowed a restriction onpolitical speech based on something other than corruption or the appearance thereof. 2
Second, as far as opening the floodgates to special interests goes, it depends on
how you define those tenns. As you may have read in the New York Times magazine thisweekend, there's no indication that there's a significant change in corporate spending thiselection cycle. 3 There are certainly people running Super PACs who would otherwise besupporting candidates in other ways-as bundlers or directors of regular PACs-but
Super PACs aren't a function of Citizen/1 United (as I'll get to shortly). And the rules
affecting the wealthy individuals who do seem to be spending more-be they Sheldon
Adelson on the Republican side or George Soros on the Democratic side-haven't
changed at all. It's just unclear that any "floodgates" have been opened or what these
special interests are that didn't exist before.

1 State of the Union 2010 (Jan. 27, 2010), available at http://www.whitehouse.gov!the-pressoffice/remarks-president-state-union-address.
2 Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990). For a further critique of suchassertions, see Ilya Shapiro & Nicholas Mosvick, Stare Decisis After Citizens United: When Can Courts
Overturn Precedent, 16 NEXUS: CHAPMAN'S JOURNAL OF LAW & POLICY 121,125-26 (2011).
3 Matt Bai, How Much Has Citizens United Changed the Political Game?, N.Y. TIMES MAGAZINE, July 22,
2012, available at http://www.nytimes.coml20 12/07122/magazinelhow-much-has-citizens-united-changedthe-political-game.html.

67
Third, the rights of foreigners--{;orporate or natural persons-is another issue
about which Citizens United said nothing. Indeed, just this year the Supreme Courtsummarily upheld the restrictions on foreign spending in U.S. political campaigns.4
Fourth and finally, there's the charge that spending on elections now has nolimits. That's close to the truth in the context of independent political speech, but it's
certainly not for candidates and parties, nor for their donors. Again, Citizens United did
not rule on either individual or corporate contributions to candidates. All Citizens United
did was remove the limits on independent associational expenditures.
More important than Citizens United was SpeechNow.org v. FEC, decided twomonths later in the D.C. Circuit. s That decision removed the limits on individual
donations to independent expenditure groups, which led to the creation of the so-called
Super PACs. Previously, we had plain-old PACs-political action committees--defined
as any group receiving or spending $1,000 or more for influencing elections, to which
individuals could only donate $5,000 per year. Now you still have to register thesegroups but there's no limit on how much people can donate to them. Citizens United
merely allowed the use of general treasury funds for speech, while SpeechNow.org freed
people to pool their money to speak in the same way one very rich person could already.
And so, if you're concerned about the amount of money spent on electionsthough Americans spend more annually on chewing gum and Easter candy6-theproblem is not with the big corporate players. This is another misapprehension of those
who criticize Citizens United: Exxon, Halliburton, and all these "evil" companies (or. even so-called good ones, like Apple and Google) aren't suddenly dominating thepolitical conversation. They actually spend very little money on political advertising,partly because it's more effective to spend money on lobbying but more importantly, why
would they want to alienate half of their customers? As Michael Jordan famously said
when he was criticized for not speaking about politics, "Republicans buy sneakers toO.,,7
Fortune 500 companies are very cautious; they won't risk the kind of consumer
reaction that Target faced after supporting a candidate who opposed gay marriage. Allthey want is a legal regime their phalanx of lawyers and accountants can manage, gladly
accepting regulations that are disproportionately onerous to their more entrepreneurial
competitors. Many corporations liked the pre-Citizens United restrictions because thenthey didn't have to decide whether to spend money on political ads!
4 Bluman v. FEC, 132 S. Ct. 1087 (2012).
5 SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010).
6 George Will, How States Are Restricting Political Speech, WASH. POST, Feb. 3, 2012 (presidential
campaigns spend roughly thesame aswhat Americans
do on Easter candy),
http://www.washingtonpost.com/opinions/states-are-cracking-down-on-political-speech-with-burdensomelaws!2012!Olf31!gIQAPe6ziQ_story.html; George Will, A Campaign-Finance Bill That Doesn't Pass
Muster, WASHINGTON POST, Apr. 27, 2011, (Obarna may raise $1 billion in private contributions for the2012 race, half of what Americans spend on Easter candy), http://www.washingtonpost.comlopinionslacampaign-finance-bill-that-doesnt-pass-muster!2011l04!26!AFXpSqOE_story.html; George Will, The
Democratic Vision of Big Brother, WASH. POST, Oct. 17,2010 (election spending for every U.S. officeduring two-year cycle is less than Americans spend on candy in two Halloween seasons)
http://www.washingtonpost.com/wp-dynfcontentlarticle/20101l0115/AR2010101504201.htm!.
7 Jordan made the statement in response to questions about why he wouldn't endorse the black Democratic
candidate, Harvey Gantt, in the 1990 North Carolina Senate race against Republican Jesse Helms. See, e.g.,
Kurt Badenhausen, The Business of Michael Jordan Is Booming, FORBES, Sept. 22, 2011,
http://www.forbes.comlsiteslkurtbadenhausenf20 II !09!22!the-business-of-michael-jordan-is-booming!.

2

68
On the other hand, groups composed of individuals and smaller players now get to
speak: your National Federations of Independent Business and Sierra Clubs, your NRAs
and Planned Parenthoods. They can't lobby as much as the big boys on K Street, butthey definitely enrich the public discourse and keep government honest. So even if we
accept "leveling the playing field" as a proper basis for campaign regulation, Citizens
United's freeing up of associational speech levels that playing field in many ways. As Ira
Glasser, the ACLU's former executive director, put it, "if regulating unevenness ofspeech by regulating the unevenness of wealth is the goal, then why include small
business corporations ... but not Warren Buffett?"sMoreover, it's a good thing that the First Amendment protects political speech
regardless of the nature of the speaker: People don't lose their rights when they get
together and associate, whether it be in unions, non-profit advocacy groups, private clubs,
for-profit corporations, or any other form. 9 But the ruling does create the odd situation
whereby independent ROlitical speech is mostly unbridled while candidates and parties
are heavily regulated. 0 That's not necessarily a bad thing-parties aren't privileged
under the Constitution-but it does create a weird dynamic.
Now, I've reviewed the various proposals introduced in this Congress to remedy
this scenario, as well as some of Citizen United's other perceived ills. They're too
numerous to detail here, but they have certain commonalities: limiting spending or
donations, prohibiting political speech through the corporate form, removing First
Amendment protections from all but natural American persons, expanding publicfinancing of campaigns, etc. The idea is that if we could only get private money out ofpolitics, elections will be cleaner and the government more accountable to the people.
The underlying problem, however, is not the under-regulation of independent
speech but the attempt to manage political speech in the first place. Political money is amoving target that, like water, will flow somewhere. If it's not to candidates, it's toparties, and if not there, then to independent groups or unincorporated individuals acting
together. Because what the government does matters and people want to speak about theissues that concern them. To the extent that "money in politics" is a problem, thesolution isn't to try to reduce the money-that's a utopian goal-but to reduce the scopeof political activity the money tries to influence. Shrink the size of government and its
intrusions in people's lives and you'll shrink the amount people will spend trying to gettheir piece of the pie or, more likely, trying to avert ruinous public policies.
While we await that shrinkage--my Cato colleagues have some suggestions if
you're interested-we do have to address the core flaw in our modern campaign financeregime. That flaw is not a stubborn First Amendment that grants more protection topolitical speech here than anywhere in the world. Instead, the original sin, if you will,
was committed b~ the Supreme Court, not in Citizens United but in the 1976 case of
Buckley v. Va/eo. I By rewriting the Watergate-era Federal Election Campaign Act l2 to
Ira Glasser, Understanding the Citizens United Ruling, HUFFINGTON POST, Feb. 3, 2010,
http://www.huffingtonpost.com/ira-glasser/understanding-the-emcitiz.-b_447342.html.
9 See, e.g., IJya Shapiro & Caitlyn W: McCarthy, So What If Corporations Aren't People?, 44 I. MARSHALL
L. REv. 701, 707-08 (2011).
10 See discussion of Comedy Central's satire of the present system in Ilya Shapiro, Stephen Colbert Is Right

8

to Lampoon Our Campaign Finance System (And So Can You!), 6 ST. THOMAS I.L. & PUB. POL'y _, _(forthcoming 2012), a\lailable at http://papers.ssm.com!so13/papers.cfm?abstracUd=210274 7.
11 Buckley v. Valeo, 424 U.S. 1(1976).

3

69
eliminate limits on campaign spending while keeping caps on contributions to candidates,
Buckley upset Congress's finely balanced global reform.
By refusing to strike down FECA altogether, just excising its expenditure limits,
the Court produced a system where candidates face an unlimited demand for campaign
funds but a tapered supply. That's why legislators spend all their time fundraising. Somewould say that's a feature not a bug-because, of course, the government that governs
least, governs best-but nevertheless these rules have inflated the priority of fundraisingefforts. Moreover, the regulations have pushed money away from candidates and toward
advocacy groups-undermining the worthy goal of accountable government.
The solution is rather obvious: Liberalize rather than further restrict the campaign
finance regime. Get rid of limits on contributions to candidates-by individuals, notcorporations-and then have disclosures for those who donate some amount big enoughfor the interest in preventing the appearance of quid pro quo corruption to outweigh thepotential for harassment. Then the big boys who want to be real players in the politicalmarket will have to put their reputations on the line, but not the average person donatinga few hundred bucks---or even the lawyer donating $2,500-and being exposed toboycotts and vigilantes. Let the voters weigh what a donation from this or that plutocrat
means to them, rather than-and I say this with all due respect-allowing incumbent
politicians to write the rules to benefit themselves.
In sum, we now have a system that's unbalanced, unstable, and unworkable-and
we haven't seen the last of campaign finance cases before the Supreme Court or attempts
at legislative reforms. At some point, however, there will be enough incumbents who
feel that they're losing message control to such an extent that they'll allow fairer politicalmarkets. It's already happening: Earlier this month, the Democratic governor of Illinois
signed a law that allows state candidates to receive unlimited campaign contributions if
their race includes significant independent spending. 13 This deregulation is a mere act ofpolitical self-preservation, but that's fine. Once more incumbents realize that they can't
prevent communities of people from organizing to express their views, they'll want tocapture more of those dollars. Stephen Colbert would then have to focus on other laws to
lampoon, but I'm confident that he can do that and we'll be better off on all counts.
Ultimately, the way to "take back our democracy"-to invoke the name of thishearing-is not to further restrict political speech but to rethink the basic premise ofexisting regulations.
Thank you again for having me. I welcome your questions. 14

12 As amended by the Federal Election Campaign Act Amendments of 1974, P.L. No. 93-443.
13
See, e.g., Free(er) Speech for ll/inois, WALL ST. J., July 12, 2012, available at
http://professional.wsj .com/article/SB I 000 142405270230374070457752276070264006 8.html?mod =djemE
ditorialPage_ h&mg=reno64-wsj.
14 In addition to these prepared remarks, I've submitted to the hearing record the three law review articles
I've written regarding post-Citizens United campaign finance, which were the basis for my presentation.
Ilya Shapiro & Caitlyn W. McCarthy, So What IjCorporations Aren't People?, 44 J. MARsHALL L. REv.
701 (2011), also available at http://papers.ssrn.com!so13/papers.cfm?abstracUd=1873158; I1ya Shapiro &Nicholas Mosvick, Stare Decisis After Citizens United: When Can Courts Overturn Precedent, 16 NEXUS:
CHAPMAN'SJOURNALOFLAW&
POLICY
121(2011),
also
availableat
http://papers.ssrn.com/so13/papers.cfin?abstracUd=1760127; Ilya Shapiro, Stephen Colbert Is Right toLampoon Our Campaign Finance System (And So Can You!), 6 ST. THOMAS J.L. & PUB. POL'y _(forthcoming 2012), available at http://papers.ssrn.com/so13/papers.cfin?abstracUd=210274 7.

4

70

TESTIMONY OF
LAWRENCE LESSIGROY 1. fuRMAN PROFESSOROF LAW AND LEADERSHIPHARVARD LAw SCHOOLSENATE JUDICIARY COMMITTEE,SUBCOMMITTEE ON
THE CONSTITUTION, CIVIL RIGHTS AND HUMAN
RIGHTS
HEARlNGON"TAKING BACK OUR DEMOCRACY:RESPONDING TO CITIZENS UMTED
AND THERISE OF SUPERPACs."JULY 24,2012

INTRODUCTION
Mr. Chairman, and Members of the Committee, my name is
Lawrence Lessig, and I am the Roy L. Furman Professor of Law
and Leadership at Harvard Law School. I also direct the University's Edmond J. Sma Center for Ethics. I have been a professor at
Stanford and the University of Chicago. Before teaching, I clerked
for Judge Richard Posner of the Seventh Circuit Court of Appeals,
and Justice Antonin Scalia.
I commend this Committee, and its Chairman, for holding thishearing, a celebration of the extraordinary grassroots movementthat has developed to demand the reversal of Citizens United, and"" ,,"J to a system for funding el....:.tions thalleads most America""
to belIeve that this government is corrupt. Hundreds 01 thousandsof citizens have gotten hundreds of cities, and now a half a dozen
states, to pass resolutions calling on Congress to correct the Supreme Court's mistake. It has been a century since we have seensuch anti-corruption activism, and it is a testament to the leadership of the many new grassroots organizations, such as Free Speech

71
for People, and Move to Amend, that in just two years, they haveachieved so much.

Yet this hearing is just the beginning of the serious work thatwill be required to address the problem in America's democracythat Citizens United has come to represent. That problem can be
simply stated:
The People have lostfaith in their government.

They have lost the faith that their government is responsive tothem, because they have become convinced that their government
is more responsive to those who fund your campaigns. As all ofyou, Democrats, Republicans, and Independents alike, find yourselves forced into a cycle of perpetual fundraising - spending, according to the estimates in the academic literature, anywhere between 300Al and 70% of your time raising money to get back into
office or to get your party back into power - you become, or atleast most Americans believe you become, responsive to the will of"the Funders." But "the Funders" are not "the People": .26% of
Americans give more than S200 in a congressional campaign; .05%
give the maximum amount to any congressional candidate; and.01% - the 1% of the 1% - give more than $10,000 in an election cycle.1 We have up-sourced the funding of your campaigns to
the tiniest fraction of the 1%; America has grown cynical in response.
Citizem Unitedhas only made this problem worse, as it has further and predictably concentrated funding in an even smaller sliceof America. In the current presidential election cycle, .000063% ofAmerica - that's 196 citizens
have funded 80% of Super PAC
spending.2 22 Americans - that's 7 one-millionths of 1% - account for 50% of that funding. Citizens United has thus further
shifted the sources of campaign funding toward an ever shrinking
few.

This, Senators, is corruption. Not "corruption in the criminal
sense. I am not talking about bribery or quid pro quo influence
1 See Lee Drutman, The Political One Percent ofthe One Percent, Sunlight Foundation Blog, http://bit.ly/LHoAfr.
2 Ari Bennan, The .000063% Election, The Nation,2

http://bit.lyILHoOmE.

72peddling. It is instead "corruption" in a sense that our Framers
would certainly and easily have recognized: They architected a government that in this branch at least was to be, as Federalist 52 puts
it, "dependent upon the People alone." You have evolved a government that is not dependent upon the People alone, but that is also
dependent upon the Funders. That different and conflicting dependence is a corruption of our Framers' design, now made radically worse by the errors of Citizens United.
As the Supreme Court has now doubled down on its deeply
flawed decision, it is both appropriate and necessary for this Congress to consider how best to respond.
But in considering that response, you should not lose sight ofthis one critical fact: On January 20, 2010, the day before Citizens
United was decided, our democracy was already broken. Citizens
United may have shot the body, but the body was already cold. And
any response to Citizens United must also respond to that more
fundamental corruption. We must find a way to restore a government "dependent upon the People alone," so that we give "the People" a reason again to have confidence in their government.
How you do that will be as important as what you do. America's cynicism about this government - whether fair or not - istoo profound to imagine that this Congress alone could craft a response that would earn the confidence of the People. The eyes ofAmericans glaze over when they hear you speak of "campaign finance reform," because they don't believe you would ever do anything that would truly end the institutional corruption that too
many within this beltway depend upon.

Instead, this Congress needs to find a process to discover theright reforms that could itself earn the trust of the American people. That process should not be dominated by politicians, or law
professors, or indeed any of the professional institutions of American government. It should be dominate,l :;l,tead by thk! People.
I have today submitted to this committee the outline of one
such plan - a series of "citizen conventions," constituted as a kindof citizen jury, and convened to advise Congress about the bestmeans of reform. But whether it is this process or another, yourchallenge is to find a process that could convince America that a3

73
corrupted institution can fIx itself That is not an easy task, though
it is crucial if you are to stop the spiraling cynicism that marks
America's attitude towards its government.
The confIdence of the American people in this government in you - is at an historic low. That is not because of the number of
Democrats sitting in Congress. It is not because of the number ofRepublicans. It is because of a dependence that all of you, and allof us, have allowed to evolve in this government, that we all see
draws you away from a dependence upon "the People alone." I
commend you for the beginning this hearing represents, but I urge
you to act now in a way that has a real chance to restore that confidence.
CITIZENS UNITED AND ITS EFFECT
There have been but few decisions in the history of the Supreme Court that have excited as much outrage and sustained furyfrom citizens across the political spectrum as has Citizens UnitedWhether or not the decision is the "worst ... this century," as
Senator McCain has described it, it is, in my view, one of the mostclumsy. One could easily agree with the principle at the core of the
Court's reasoning - that Congress hasn't the power to effectively
ban for any sustained period of time the speech of any entity engaging in political activity - without accepting the principle thatthe case has come to stand for: that Congress has no power to limit
the corrupting influence of unlimited independent expenditures.
That second principle does not follow from the fIrst: One could
easily insist that the government does not have the power to effectively silence the political speech of anyone or any group whether immigrants, corporations, the French or dolphins for thatmatter - without concluding that the government has no power
to limit the corruption of its democracy.
Yet it is this broader principle that has led courts and the Federal Election Commission to truly revolutionize the actual practiceof campaign funding, and not just at the federal level. Courts havetaken the hint from the Supreme Court's recent cases, and remade
the nature of campaign fundraising.
This is not to say that before Citizens United, large contributions or expenditures did not matter. Of course they did. But Citi-

474
zens United and its progeny have changed the way that large expenditures can matter. And that change in tum has inspired an explosion in the level - both the amount and the size - of suchcontributions.3

Before Citizens United, individuals could make large contributions to qualified nonprofit corporations ("c(4)s"). But c(4)s were notpermitted by the IRS to make "political influence" their primary
purpose. Thus c(4)s had to spend 50% or more of their funds on
activities other than "political influence." In this way, the influenceof c(4) contributions was effectively taxed at a 50% rate.
Likewise, before Citizens United, individuals and corporations
could contribute to independent political committees organizedunder section 527 of the Internal Revenue Code ("527s"). All 527s
can spend 1000Al of their money for purposes of "political influence." If they acted independently of any political campaign, 527s
could also accept unlimited contributions - but only so long as
they avoided express advocacy for or against any candidate. Thus,
money contributed to these 527s wasn't taxed with the burdens of ac(4). But it was burdened by the risk that its indirect advocacy
would be deemed express advocacy, and thus subject to penalties
from the F.E.C.
Citizens United and its progeny have radically changed these
two limits. Relying upon Citizens United, the D.C. Circuit lifted
the contribution limits on independent 527s that engage in express
advocacy. The F.E.C. then formalized the rules governing thesecommittees, creating what has been dubbed, by Eliza Newlin Carney, the "Super PAC."

Super PACs are thus a classic story of American innovation:deliver more bang for the buck, and radically change the market.
Because Super PACs aggregate contributions, they spend theirmoney more efficiently than contributors could on their own. Because they are freed of the effective 50% ~ax on c(4)s, the aggTe3 Throughout this testimony, by "contributions" I mean both direct contributions

to a campaign, and indirect contributions to "independent" political action
committees. This aggregation is not meant to deny that the independent committees act independendy. Whether they do or not, the beneficiary (the candidate) certainly can recognize what he or she must do in order to induce moresuch contribu tions.

5

75
gated contributions will have more effect. And because they are
freed of the rule against express advocacy, the contributions can be
more effective. As the iPhone taught the cellphone, or the Internet
taught the mainframe, or the PC taught the calculator: do more
more efficiently, and demand will take off.
And so has the demand for Super PAC spending soared: As
the Sunlight Foundation reports, in the 2011-12 cycle so far, morethan a quarter of a billion dollars has been raised by Super PACs.
Of the $142 million spent so far, negative spending has outstripped
positive spending 2 to 1. 4 OpenSecrets.org reports that throughApril, "outside spending in all its forms has doubled since 2008,
but independent expenditures have more than tripled."5 And while
there are questions about whether that growth was truly caused by
Citizens United,6 there can be no question that changes in the concentration of funding have been driven by changes caused by Citizens United. Whether there was a comparable amount of money in2008 or not, the number of large funders has grown. In my view, itis this concentration that defines the corruption, for it is this concentration that creates the corrupting dependence.?
The full effect of Citizens United, however, is not captured in
numbers. Indeed, there are three points beyond the numbers that
this committee should keep in view.
1. Citizens United has radically changed the business model ofpo-

liticalfundraising.
The most important effect of Citizens United is a change in thebusiness model of campaign funding. When contributions (either
directly to a campaign or indirectly to an "independent" commit4 See Follow the Unlimited Money, http://bit.lyILIJ77Y.

5 See Bob Biersack, Outside Spending: The Big Picture (So Far), OpenSecrets-

BIng, hrtj>:/fbit.lyII Ill:> 7R
6 See, e.g., Matt Bai, How Much Has Citizens United Changed the Political

Game?, New York Times, July 17, 2012. See also Rick Hasen's succinct response
to Bai's piece. Election Law Blog, http://bit.lyILIJe3w.
7 It is for this reason that proposals to "remedy" the problem caused by Citium

United by simply lifting all contribution limits simply misses the point If thecorruption is caused by the gap between "the Funders" and "the People," lifting
contribution limits will simply increase that corruption, by increasing that gap.

676tee) are limited, candidates must appeal to a large number of potential contributors to fund their campaigns. But when such contributions are unlimited, the most efficient way to fund a campaign
is to appeal to large contributors alone. Candidates' time is short. It
makes much more sense to spend that time trying to secure large
contributions rather than small. And this fact in tum radically expands the influence of large contributors over others within theelectoral system. 8
This is precisely the point that the Montana Supreme Court
made when upholding its regulation of corporate speech in political elections, but which the United States Supreme Court reversed(without even granting Montana the courtesy of a fully briefed
opinion). As the Montana Court wrote, "allowing unlimited independent expenditures of corporate money into the Montana political process would drastically change campaigning by shifting theemphasis to raising funds."9 Instead, by limiting contributions andthe source of those contributions, campaigns in Montana are"marked by person-to-person contact and a low cost of advertising
compared to other states."lO
By structuring an election system in which candidates must rely
upon small contributions from citizens only, the system assures thatcandidates pay attention to the needs of those contributors
andhence the needs of these citizens. But when contributions are concentrated in the very few, those few have a corrupting influence,
S Congressman John Sarbanes (D-MD) has reacted to this dynamic by creating
a formal structure to create pressure on him, and his campaign, to raise small
contributions to support his election. Through a legal trust, his campaign raised
funds that could only be accessed once 1,000 small contributors had been secured. See Paul Blumenthal,John Sarbanes Experiments With His Own Campaign
To Promote Public Financing, http://huff.tolPzpkVm.Tomyknowledge,this is
only time such a device has been used in the history of the Naiton, and it reflects
the strong pressure on a congressional campaign that would otherwise exist toraise funds in large contributions only. On June 30, Sarbanes met his initial target of 1',000 contributors.
9

Western Tradition Partnership, Inc. v. Montana, 2011 MT 238, p18 (2011).

10 The Montana Court also credited the work by Edwin Bender of the National
Institute on Money in State Politics, who found that the "percentage of campaign contributions from individual voters drops sharply from 48% in states withrestrictions on corporate spending to 23% in states wi thout." ld. This finding is
consistent with the theory that unlimited contributions drive the business modelof fundraising away from small contributions to large. Id.

7

77
because the government's dependence upon them conflicts with adependence upon the people "alone."
Yet concentrated influence is exactly what the current system ofcampaign funding induces. As many have recognized, it is as if
America runs two elections each election cycle - one a moneyelection, and one a voting election. To succeed in the latter, youmust succeed in the former fIrst. But while in the voting election,
all citizens can participate, in the money election - at least whencontributions are unlimited
only a tiny slice of America can participate meaningfully. Those tiny few have extraordinary influence
relative to the rest of us. And so long as effective contributions are
unlimited, candidates will continue to be dependent upon thosetiny few, and hence not "dependent upon the People alone."

2. Citizens United has affected local as well as national elections.
The principles that the Court announced in Citizens United
derive from the First Amendment. Yet because of incorporation,
they apply to every political entity subordinate to the federal government as well. Thus the rules of unlimited expenditures that arechanging the nature of presidential and congressional elections arechanging the nature of state and local elections too - including
judicial elections. ll Norms favoring campaigns funded primarily bylarge contributions are displacing the practice of small, citizen
funded elections. David Sirota, for example, writes in Salon about
the extraordinary story of a school board race in Denver dominatedby $25,000 contributions. 12 Total contributions in that race approached $1 million. Sirota's story is an increasing norm.1 3

11 Perhaps strangely, when it comes to judicial elections, the Supreme Court isquite sensitive to the corrupting influence of unlimited independent expenditures. In Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009), for example,
the Court crafted 2. new ('''''~t\tutiona.l mle to forrp "judge to recuse him~el("inthe face of large independent campaign expenditures, for fear that the taint ofcorruption would taint the judicial process. Why independent expenditures
could taint judicial elections but not legislative or presidential election was not
explained well by the Court.

12 See http://bit.lyIIlJiAa.

13 See Ben Tribbett, Citizens United Goes Local, Huffington Post,
http://huff. toILHeU4 E.

878
No doubt real differences are at the core of these races, anddrive these contributions. And in a democracy, in my view, we needmore, not less, attention to political and policy differences. That
attention, in turn, will cost more real money.
But the problem with the post-Citizens United campaigns is
not the amount of money. It is the source. Again, to qua1if)r as a
viable candidate in elections from school board to president, you
increasingly need the effective approval of the tiniest slice of the
1%. Without that approval- expressed in contributions, not votes- the vast majority of candidates have no chance in the voting
election. For most, winning the (tiny fraction of the) 1% election isthus a necessary condition for winning in the 9<JOr6 election.
We ridiculed Soviet "democracy" when it effectively did thesame thing, by requiring every candidate be cleared by the Politburo before being allowed on the ballot. Yet most in America today
don't even recognize the parallel that we have produced here.
3. More ejfictive disclosure alone could not reveal the influencethat Citizens United has ejficted.

There are some who believe that any problem that Citizens
United created could be remedied simply by more effective disclosure. It is critical that this Committee recognize that however important disclosure is, disclosure alone could not reveal the actual influence of unlimited independent expenditures.
This point is clear from both academic work and practical political experience.
Marcos Chamon and Ethan Kaplan, for example, in their work
describing the "Iceberg Theory of Campaign Contributions," pointout that the incentive produced by a $10,000 contribution to a
candidate is the same as the incentive produced by a $2,000 contribution to that candidate, plu.; a credible threat of an $8,000 contribution to that candidate's credible opponent. 14 Given that equivalence, it's not surprising the contributor would opt for the smaller
contribution. But obviously, the influence of that $8,000 would becompletely missed even by the most effective disclosure statute. No
14 See http://bit.lyILHojZN. The $10,000 assumes PAC contributions ($5,000

per cycle).

9

79
rule requires that implicit threats be disclosed. Nor could any suchrule be enforced.
The same point has been recognized by at least former Members of this body, relying less on formal modeling and more on thepractical reality of post-Citizens United politics. I had the privilege,
for example, of participating on a panel with Senator Evan Bayh,conducted by Senator Arlen Specter, discussing Citizens United.
Senator Bayh explained quite clearly the dynamic that Citizens
United has produced: As he put it, the biggest fear an incumbent
has now is that 30 days before an election, some Super PAC will
drop a $1 million in attack ads on the other side. If that happens,
the incumbent can't simply tum to his or her largest contributors,
for by definition, they have already maxed out in the campaign. So
instead, the incumbent must, in effect, buy (what we could call)"Super PAC insurance": the assurance that if a Super PAC attacks,
there will be another Super PAC on the incumbent's side to defend. But as with any insurance, premiums must be paid in advance - which in this case means the incumbent must behave in a
way that gives Super PACs on his or her side a reason to defend
the incumbent. ("We'd like to support you Senator, but we have arule that forbids us from supporting anyone with less than a 90%
grade on our report card ... "). The Senator thus has a target. And
long before even a dollar is spent by anyone, that threat has the potential to change the incumbent's behavior.
This is the economy of a protection racket. And once again, theinfluence of that protection racket could not be captured by any disclosure scheme. Thus disclosure may be essential, but disclosure is
not enough.
Let me emphasize this point to be clear: I serve proudly on theadvisory board of the Sunlight Foundation, and I am a strong supporter of disclosure legislation. Effective disclosure makes it possibit: for the public to identify the influences that might influence
their candidates. It makes it harder tor illicit influence to find Its
effect within a political system.
But as valuable and as necessary as disclosure is, we must recognize that it could not be a sufficient response to the corruptionthat now defines this government. Only a system of "citizen fundedelections" - where dependence upon "the Funders" is the same as10

80
dependence upon "the People" - could reform that corruption. I
don't need to explain this point to this Chairman, who has championed one version of "citizen funded elections" in the form of the
Fair Elections Now Act. But I do find that in the frenzy to reverse
Citizens United, too many have forgotten that even if we succeeded, a more fundamental problem would remain. That problem
too requires your attention.

THE POUTICAL RESPONSE TO CITIZENS UNITED
On the day that Citizens United was decided, the political response to the Supreme Court's mistake was born. But interestingly,
and importantly, that response came not just from traditional, existing, inside the beltway organizations. It came as well from a slewof new organizations, formed by outraged citizens from across thecountry. Groups such as FreeSpeechForPeople.org and MoveToAmendorg, launched almost simultaneously and joined many othermore established organizations, such as Common Cause, Public Citizen, MoveOn.org, and People for the American Way, to push for aconstitutional response to the Supreme Court's ruling.
These grassroots movements have in turn inspired scores of
local city councils to adopt resolutions calling on Congress to initiate an amendment to overturn Citizens United. IS Half a dozen statelegislatures have now passed similar resolutions. 16 And literally
thousands of citizens have been joining meet-ups and public fora

15 Using the compilation provided by Pe~plefor theAmerican Way, Harvard Law
student Alan Rozenshtein has calculated that more than 270 cities and towns
have now passed resolutions. Of these, 38% call for an amendment declaringthat "corporations are not people"; 10.2% that "money is not speech"; and 8.5%
that corporations be denied full First Amendment rights. These cities and towns
come from more than half the states (27).
16 California, Hawaii, Maryland, New Mexico, Rhode Island, Vermont.

11

81
to discuss what should be done to respond to the corruption of thissystem. 17
I have had the privilege of witnessing this extraordinary energy
first hand. Since January, 2010, I have given more than a hundredtalks across the country to literally tens of thousands of citizens.
These events, organized by a wide range of groups, have been
packed with frustrated and angry citizens - and packed not justbecause of my stunning good looks. Instead, ordinary citizens on
both the Right and the Left have come to see that something fundamental is rotten on this Hill, and that they have a crucial role infixing it.
The cities and states that have passed these resolutions are notaliens within our culture. Indeed, as my colleague Paul Jorgensen
has calculated, they look very much like the rest of America. If wecreated a Nation comprised of the states that have passed resolutions against Citizens United, it would have the same basic demographics as the rest of America: the same percentage of women(50.5% vs 50.8%), fewer African Americans (8.6% vs. 12.6%),
more Latinos (32.6% vs. 16.3%). And if we created a Nation comprised of the cities and townships that have passed resolutions
against Citizens United, it would look even more like the rest of
America: women, 50.7% vs. 50.8%; African Americans, 12.9% vs.
12.6%; Latinos, 26.8% vs. 16.3%. The only significant difference
between these two "anti-Citizen United nations" and the rest of
America is the per capita political contributions: Anti-Citizen
United America gives, per capita, much more in political contributions than the rest of America: $12.10 (States) vs. $8.80 (Nation);$18.90 (CitiesITowns) vs. $8.80 (Nation).
Many in Congress have now responded in turn to this energy,
and taken the lead to propose amendments to overturn Citizens
United. While these amendments are different, they are all born of
17 People for the American Way has the most complete list of passed and pending
resolutions, which I have attached as an Appendix to this testimony.
MoveToAmendorg has a similar list of resolutions opposing corporate personhood, as well as others that the organization believes "don't fully address corporate constitutional rights" (http;llbit.lyILHou7z). Finally, United4ThePeople.org,
a site maintained by Peoplefor the American Way, has a list of public officials endorsing constitutional remedies, as well as a collection of the amendments thathave been introduced so far.

12

82
the common view that our democracy has been corrupted. Some
believe the best way to attack that corruption is to deny the statusof "personhood" to corporations. Some believe that the First
Amendment should be amended to reverse Buckley v. Valeo, anddeclare that "money is not speech." And some believe the best way
to respond is simply to affirm that Congress has the power to enact
content-neutral laws regulating campaign contributions and expenditures.
While we all have our own convictions about which of thesevarious solutions would work best, what has been most striking tome in this process has been the open willingness of even proponents of various amendments to recognize that they are not yet
certain about which response is best. In this way at least, this period is unlike the Progressive Era of a hundred years ago, when a
primary source of federal corruption was thought to be, whether
rightly or not, the structure of the United States Senate. In that
context, the task of crafting a constitutional response was simple,
and the 17th Amendment achieved it.
But today, as everyone with even an ounce of humility recognizes, the challenge of crafting an appropriate constitutional response to Citizens United is incredibly difficult. The First Amendment has become the heart of America's democracy. As with open
heart surgery, one must be extraordinarily careful before tinkeringwith the freedoms that amendment secures, even if the cause is as
significant as the struggle to restore faith in this democracy.
Yet in one way, the challenge facing this Congress is simpler
than at other times in our history when constitutional reform has
been needed.
When the Radical Republicans proposed the Civil War
Amendments, no one doubted that they were proposing to change
critical principles of the original constitution. No one today questions the wisdom of lh<l.l change. But ch"hge it was.
Likewise with the 17th Amendment: Everyone recognized thatthe decision to displace the power of state legislatures to appoint
United States Senators was a decision to modifY the constitutional
commitment to federalism.

13

83
And likewise with the 19th Amendment: Everyone, women
especially, understood that amendment to be a change in the Constitution's responsibility to guarantee equality to women.
Almost everyone today agrees with each of these changes. But I
appreciate how difficult each of them must have been, at least for
constitutionalists of the day. The temptation to conservatism isstrong. And against the genius of the Framers' (flawed but) brilliant design, it is always difficult to muster the courage or confidence to commit to changing it.
But the reform that this Congress needs to effect is not any
change of the Framers' design. It is a restoration of that design. We
don't need to decide whether to add a new principle to their constitution. We need simply to figure out how best to respect the principles that already guided them.
The Framers gave us a "Republic." But by a Republic, they
meant a "representative democracy." And by a "representative democracy," they meant a government with a branch that would be"dependent upon the people alone."
This Congress, however, is plainly not "dependent upon thepeople alone." It is dependent as well upon "the Funders." And in
my view, the .simplest and most important objective of any
amendment must be to restore that critical constitutional principle,
by removing a dependence on anything save "the People alone."
For the reasons that I sketched in my introduction, simply reversing Citizens United would not achieve this end. Indeed, returning America to the democracy that existed before Citizens United
would still leave us with a democracy in which Congress was dependent upon the tiniest slice of the 1% to fund its elections. That
dependency is corrupting - by drawing your attention away fromthe attention the Framers intended,- in exacdy the way that Citizens United is cOfrTting. And any consti.~,tional reform must con-sider that corruption alongside the immediate and pressing need toreverse Citizens United.
The ideals of the Framers' Republic could, and should, guide
your reform. For in my view, here at least, the Framers were clearlyright: We need a Republic, a representative democracy, with a leg-14

84
islature "dependent upon the People alone." Reversing Citizens
United alone won't get us that Republic. It may be an essential step.
But it is not the last.

NEXT STEPSThe task this Congress faces is not just to determine the best
amendment to restore trust in this government. It is also to do thatin a way that itself earns the confidence of the people in thatamendment. No constitutional reform can ever pass without broadand cross-partisan support. But in this political climate, no suchsupport is possible unless the process you adopt for identifYing thenecessary reform itself convinces America of its own integrity.
This is a concern that the Framers themselves were focused
upon. When the drafters of the constitution first architected Article V, the amending procedure, they vested in Congress exclusive
control over the amendments that could be proposed. But an obvious question was then raised: What if Congress itself was the
problem? That concern led the Framers to open a second path toamendment - securing to state legislatures the power to demandthat Congress call an Article V convention, that itself could propose amendments. Those amendments must be ratified in the same
way as amendments proposed by Congress. But by creating thepossibility that they could be proposed by a body other than Congress, the Framers guaranteed a path to reform that was not controlled exclusively by the body that needed reform.
There are many who are skeptical about an Article V convention today. In my view, much of that concern is misguided. But independently of the power of the states to demand that Congressconvene a convention, Congress plainly has the power to constituteits own independent procedure for advising it about the best means
for reform.

In a separat_ ~uLll~>;i,iun, I have outlined one ~uch procedur..:that in my view could both identifY the correct reforms and do soin a way that would earn the confidence of the American people.
Through a series of "citizen conventions," constituted by a random
selection of 300 citizens within each, and conducted as deliberative
polls, Congress could empower a body that could both deliberate
carefully about the question of reform, and itself earn the confi-

15

85

dence of the American people in its work. That body would be removed from the influences thought to corrupt this Congress, but
secured in its work through a series of protections that Congress
would by law enact. Its product would represent a mature and considered judgment of a statistically fair snapshot of America. And if
conftrmed through a series of deliberations, could well earn thetrust sufficient to support the broad movement for reform that thisgovernment needs.
I recognize that this sounds like a radical proposal - though
how odd is it, that in a Republic, the idea of returning to the People for guidance sounds "radical.» I know there are many who areskeptical about the ability of ordinary citizens to deliberate seriously and effectively about an issue as important as the Constitution.
But as a law professor who has taught in the most elite ofAmerica's law schools for more than 20 years, I am not at all skeptical of the work of ordinary citizens properly convened within aconvention. Indeed, in the few examples that I've seen, I have only
been inspired by that work. 18
Yet to the skeptics I would say this: the worst that this proposal
could produce is ideas that may fail to inspire Congress. By contrast, the best that would happen from a process controlled exclusively by this Congress is a series of proposals that will certainly failto earn the confidence of a signiftcant proportion of the American
people.
-whether it is "citizen conventions" or some other procedure,
however, my point is simply this: ordinary process will not work
here. America won't trust the work of Congress alone. Neither willit trust the work of any "blue ribbon commission" comprised of experts with strong ties to this Congress. Instead, this Congress must

IS I was first convinced after a "mock" Constitutional Convention that I cochaired with Mark McKinnon, conducted at a CoffeePartyUSA.com convention
in Kentucky. See http://bit.lyILHpusd. More than hundred attendees at thatconvention deliberated for just a day about the problems they had identified, andcrafted a set of innovative and valuable responses. Those responses were not "liberal." They were not "conservative." To one who has studied the Constitution
carefully, they were simply restorative.

16

86
find a process that gives America a reason to listen. America has
grown bored with elites and insiders.

CONCLUSION
Every one here recognizes that the work of a Member of Congress is not easy. Nor is it often fun. As your families know, youspend endless hours serving this Republic. You have almost no
time to focus on even the most fundamental questions.
In such a context, it is easy to lose perspective. And surroundedby those offering their support, and seeking your help, it is easier
still to focus simply upon your good intentions.
There is no doubt that the intentions of Members from bothsides of the aisle are good. This is not the Congress of the Gilded
Age. Corruption in its criminal sense is almost extinct.
But good intentions are not enough. And with respect for thisCommittee, and love for this institution, I would urge you to stepback and recognize something that is as clear to most Americans asanything could be: Our confidence in this institution is collapsing.
This body, the crown jewel of the Framers' Republic, created in thefirst article of their Constitution, has lost our trust. Poll after pollfinds confidence ratings at or below 109-6. Ten percent. It is certainly
the case that a higher proportion of Americans had faith in the
British Crown at the time of the Revolution than have faith in thisbody today.
It is critically necessary that you act swifdy - not as Democrats or as Republicans, but as trustees to the most importantdemocratic body crafted within our tradition - to give America areason to trust you again. You will do that only if you make yourselves again "dependent upon the People alone" - through boththe votes that elect you, and the funding that makes your elections
possible.

17

87

Appendix:

People For the American Way
List oflocal and state resolutions
Updated 7/1712012
This list is regularly updated at: http://www.pJaw.org/inue;/govemment-the-people/citizem-united-vjec-constitutional-remedies-list-if-Iocal-state-and-f

AlaskaState Resolutions
HfR 33, introduced by Representatives Gara, Tuck, Holmes, Miller, Gardner, Kawaski,
Kerttula, and Petersen on February 2, 2012, proposes that Congress and the President
work to pass a constitutional amendment that would limit the ability of corporations,
unions and wealthy individuals from making limidess independent expenditures toinfluence the outcome of elections. Currendy awaiting passage in Alaska's House ofRepresentatives.
SIR 13, introduced by Senator Dyson, passed in the Senate on March 21, 2012 in a
12-7-1 vote and is currendy awaiting passage in the House. It proposes that Congress
and the President work to pass a constitutional amendment that would limit the ability ofcorporations, unions and wealthy individuals from making limidess independent
expenditures to influence the outcome of elections.
Local Resolutions
On July 10,2012 The City of Sitka passed a resolution supporting an amendment to theconstitution to restore the peoples power to limit corporate influence in elections andpolicy making

ArizonaState Resolutions
HCR 2049, introduced by State Representative McCune Davis on February 1,2012,provides support for the introduction of a 2012 ballot initiative that would call upon
Congress to pass a constitutional amendment to overturn the Citizens United decisionand related cases.
SCR 1040, introduced by State Senator Steve Gallardo on January 31, 2012, provides
support for the introduction of a 2012 ballot initiative that would call upon Congress topass a constitutional amendment to overturn the Citizens United decision and relatedcases.

Local Resolutions Passed
On May 4, 2012 the Flagstaff City Council passed a resolution calling fur aconstitutional amendment, organized by a new citizens' group called Flagstaff for
Democracy planned. The resolution calls on Congress to approve a 28th amendment to
the United States Constitution that would overturn Citizens United by stating that
rorporations are not natural ["{Son'; entit1erl to can<titutional protections of IT.". ,pepel.
that money is not speech for the purpose of influencing elections, and that local, state andfederal government shall have the right to regulate, limit or prohibit contributions andexpenditures, including a candidate's own contributions and expenditures for the purposeof influencing in any way the election of any candidate for public office or any ballot
measure, and that any permissible contributions and expenditures be publicly disclosed.
On June 12,2012, The Tuscon City Council voted 7-0 in favor of abolishing corporate
personhood and supporting a Constitutional amendment.

Arkansas
Local Resolutions Passed

Appendix-l

88
OnJune 5,2012, the Fayetteville City Council passed a resolution to defend democracy
by ensuring only human beings, not corporations, have constitutionally protected frce
spr,pch.
California

State Resolutions
AJR 3, introduced on January 23, 2010 by Assemblyman Pedro Nava (D-35), expresses
disagreement with the Citizens United ruling, and calls upon Congress to pass aconstitutional amendment to address the issue.
AIR 22, introduced on March 20, 2012 by Assemblyman Weikowski, passed in the
California State Assembly and passed in the California State Senate. Thus, California
became the 6'" state to call upon Congress to propose an amendment. It proposes that
Congress pass a constitutional amendment to overturn the Citizens United decision.

Local Resolutions Passed
On April 25 th , 2000, the municipality of Point Arena passed a resolution rejecting
corporate personhood, which declared, "Interference in the democratic process bycorporations frequently usurps the rights of citizens to govern."
On May 19,2004, the city of Arcata passed Resolution No. 034-51, the Corporate
Personhood Resolution, declaring corporate personhood illegitimate and undemocratic. It
attempts to prevent corporations from challenging Arcata town laws that restrict
corporations.

On February 10,2010, the Humboldt County Democratic Central Committee passed
the Resolution to Legalize Democracy and Abolish Corporate Personhood in response to
the Citizens United v. FEC ruling. The resolution calls for an amendment to the US
Constitution to abolish corporate personhood.
On March 1,2010, Richmond City Council votes unanimously to support a resolution
calling for a constitutional amendment to abolish corporate personhood.
On April 1, 2010, the Berkeley City Council passed a resolution calling for "amending
the United States and California Constitutions to declare that corporations are notentitled to the protections or "rights" of human beings and to declare that the expenditureof corporate money is not a form of constitutionally protected speech."
On December 1, 2010, students at UC Santa Barbara passed a resolution against
corporate personhood through their student government.
On March 28, 2011, the Fort Bragg (CA) City Council passed a resolution calling for aconstitutional amendment to ban corporate personhood. All of the council memberspresent voted for it; one member was absent.
On April 1, 2011, AFSCME Local 1684 in Eureka passed a resolution condemning theSupreme Court's ruling on Citizens United and proposing a constitutional amendment toreverse the decision.

On April 12, 2011, the Central Labor Council of Humboldt and Del Norte adopted theMove to Amend Model Resolution.
On April 22, 2011, the Associated Students of HSU passed a resolution supporting theMove to Amend campaign anrl calling for a constitutional amendment te ~oolish .
corporate personhooJ. '1 he resolution was propose.! by a group of students working with
Democracy Unlimited.
On July 21, 2011, the South Robertson Neighborhood Council (SORONC) passed a
non-binding resolution to amend the Constitution to state clearly and unequivocally thathuman beings, not corporations, are entitled to constitutional rights and that money
should not be equated with speech.
On August 15,2011, the Ojai Valley Democratic Club endorsed a resolution supportinga Constitutional amendment ending corporate personhood.
On August 24, 2011, the Marin County Board Supervisors voted unanimously in favor ofa resolution supporting a Constitutional amendment to overturn the Citizens United
decision and limit corporate constitutional rights.

Appendix-2

89
On Tuesday October 18,2011, the Marina City Council passed a resolution calling for aconstitutional amendment in response to the Citizens United vs Federal Election
r '''Y'.mission case,On December 1,2011, the Wellstone Progressive Democrats of Sacramento passed a
resolution that calls for a constitutional amendment that abolishes corporate personhood.
They also agreed to send a letter with the endorsed resolution to the California State
Democratic Central Committee asking the California Democratic Party to endorse theresolution.
On December 6, 2011, Los Angeles City unanimously endorsed a resolution to end
personhood rights of corporations and allows Federal, State, and Local governments toregulate campaign finance.
On December 20m, 2011, the city council of Oakland, California unanimously passed a
resolution in support of a constitutional amendment to reverse the Citizens United
decision.
On January 11 m, 2012, the town council of Fairfax California approved a resolution infavor of abolishing corporate personhood with the intent of restoring the democratic
process to the people.
OnJanuary 17,2012, West Hollywood passed a resolution condemning the Supreme
Court's decision on Citizens United and supporting a constitutional amendment tooverturn the ruling.
On January 24, 2012, the city of Santa Cruz approved a resolution that calls for aconstitutional amendment to overturn the Supreme Court's decision on Citizens United.
On January 25, 2012, the city of Petaluma passed a resolution in a 6-1 decision that called
for a reversal of the Citizens United decision.
On January 31, 2012, the city of San Francisco passed a resolution condemning theSupreme Court's ruling on Citizens United and supporting a constitutional amendment
to reverse the decision.
On February 6, 2012, the Albany City Council has passed a municipal government
resolution that calls for a constitutional amendment to overturn the Supreme Court's
decision on Citizens United and clarifies that corporations are not people.
On February 21, 2012, the city council of Davis voted unanimously on a resolution in
support of Assembly Joint Resolution 22, a bill in the California legislature that calls on
Congress to pass an amendment to overturn the Citizens United decision.
On Feb. 21, 2012, the City of Sebastopol passed a resolution urging Congress to propose
a constitutional amendment to remove corporate personhood and oudaw politicalspending by corporations.
On March of2012, the city of Point Arena unanimously passed a resolution supporting
their previous resolution in 2000, which called for the abolition of corporate personhood.
On March 1,2012, the Democratic Central Committee of Marin passed a resolution
calling for a constitutional amendment to overturn the Supreme Court's ruling on
Citizens United.
On March 6,2012, the Berkeley City Council unanimously passed their second
resolution calling upon Congress to amend the Constitution to overturn Citizens United
in support of Assernl,ly Bill AJR 22 and tc '.t~~rl wid. conununities across the country'
who are engaged in the movement.
On March 13, 2012, the Ojai City Council passed a resolution that supports aconstitutional amendment to overturn the Supreme Court's ruling on Citizens United.
On March 14,2012, Nevada City's City Council passed a resolution supporting a
constitutional amendment stating that corporations should not receive the same
constitutional rights as natural persons and that money is not speech.
On March 19,2012, the Los Altos Hills City Council approved a resolution thatcondemns the Supreme Court's ruling on Citizens United and calls for a constitutional
amendment to reverse the decision.
On March 20th, 2012, the city council of Mountain View passed a resolution in favor ofabolishing corporate personhood, and encouraging Congress to pass a constitutional
amendment that would overturn the Citizens United decision.
Appendix-3

90
On March 23, 2012, rhe Sonoma County Board of Supervisors voted urging Congress topass an amendment to rhe U.S. Constitution rhat would overturn rhe Citizens United

decision.
On April 9, 2012, rhe Malibu City Council, At rhe request ofCouncilmember Conley
Ulich, adopted Resolution No. 12-10, supporting a Constitutional Amendment andlegislative actions restricting corporate spending in rhe electoral process and ensuring rhat
only human beings, not corporations, have constitutionally-protected free speech.
On April 17th , 2012, rhe city council of Chico passed a resolution calling on Congress topass a constitutional amendment to overturn rhe Citizens United decision. The resolution
provides rhat corporations should not have rhe constitutional right to spend money inelections, and rhat money should not be equated to speech.
On April 24, 2012, City Council of the City of Thousand Oaks passed a resolution
declaring its support for an amendment to rhe United States Constitution to end
Corporate Personhood.
On May 5 th , 2012, rhe Redlands City Council passed a resolution calling for aconstitutional amendment based upon rhe principles rhat corporate rights should be
limited and money is not speech.
On May 15,2012, rhe Plumas County Board of Supervisors in Quincy, California passed
a resolution to call for a constitutional amendment to abolish corporate personhood.
On June 12,2012, rhe Ventura County Board of Supervisors passed a resolution rhat
supports a Constitutional amendment ending corporate personhood and rhe doctrine rhatmoney is not free speech.
On June 26, 2012, the Oxnard city council voted 4-0 to support a constitutional
amendment ending corporate personhood, a concept rhat has generated controversy
fOllowing a 2010 U.S. Supreme Court ruling rhat allowed corporations certain unlimited
political spending under free speech rules.
On July 12, 2012 rhe Claremont City Council voted to pass a resolution calling on
Congress to overturn rhe Supreme Court's decision in Citizens United v. FEC byconstitutional amendment.

ColomdoLocal Resolutions Passed
On AprilS, 2011, rhe Arapahoe County Democratic Central committee approved aresolution in support of rhe Move to Amend constitutional amendment campaign.
On April 13, 2011, rhe Boulder Democratic Party passed rhe Urging Support of aConstitutional Amendment Abolishing Corporate Personhood resolution supporting ananti-corporate personhood amendment.
On September 12,2011, rhe Jamestown Board of Trustees unanimously passed a
resolution calling for an amendment to the U.S. Constitution to establish rhat only
human beings, not corporations, are entitled to constitutional rights and that the First

Amendment does not protect unlimited political spending as free speech.
On November 1,2011, voters in Boulder, CO passed a ballot measure calling for anamendment to rhe US Constitution rhat would state rhat corporations are not people andreject the legal ~tatus of money as free speech.
On January 3, 2012, rhe Conlnussioners 01 Pueulo County, Colorado unanimously passed
a resolution in favor of overturning rhe Citizens United decision, and calling for rhe endof corporate personhood.
On Feb. 7,2012 the Archuleta County Republican convention approved resolutions
calling for a constitutional amendment overturning rhe Supreme Court's Citizens United
decision.

On March 17,2012 the Archuleta County Democratic convention approved resolutions
calling for a constitutional amendment overturning rhe Supreme Court's Citizens United
decision.
On March 23,2012 borh the Archuleta County Democratic convention and Republican
Convention issued a joint resolution against rhe use of outside expenditures from
corporations and unions in elections

Appendix-4

91
On April 17, 2012, Archuleta County Colorado Board of County Commissioners passed
a resolution condemning corporation and union money in politics.

em l'vl2.y 17, 2012 ~.'!; ::lWl1 '-:"U!lCil "'~ I ;! ..

~i.m"1 ~,!·T('Hu'l"i;:k passed :t resnhlt!(:·""::

declaring its support to ending corpotate personhood.
Connecticut
Local Resolutions Passed
On May 15th, 2012, the city council of Hartford unanimously passed a resolution in
support of an amendment to the Constitution that would overturn Buckley v. Valeo and
the Citizens United v. FEC. The public support for the amendment was strong, withstanding-room-only at the public hearing and over 60 Hartford residents in support.
On June 4,2012, the City Council of New London approved a resolution in support of aconstitutional amendment abolishing corpotate personhood.
On June 4,2012, the Common Council of Middletown passed a resolution condemning
the Citizens United decision and calling for electoral form.
On June 4,2012, the New Haven Board of Aldermen passed a resolution that calls for anamendment to the Constitution abolishing corpotate personhood.
OnJune 11,2012 The Ashford Board of Selectmen passed a resolution calling for aconstitutional amendment to overturn Citizens United v FEC.
On June 11,2012, the West Haven City Council passed a resolution calling for aconstitutional amendment to overturn Citizens United.
FloridaState Resolutions
SM 1576 - the People's Rights Amendment - introduced by Sen. Braynon on January
5 th 2012, proposes that Congress pass a constitutional amendment that would overturnthe Citizens United decision.
HM 1275 - the People's Rights Amendment - introduced by Rep. Williams on January
5 th 2012, proposes that Congress pass a constitutional amendment that would overturnthe Citizens United decision.
Local Resolutions Passed
On September 15,2011, the Sarasota Alliance for Fair Elections (SAFE) has passed a
resolution stating that SAFE stands with the Move to Amend campaign andcommunities across the country to defend democracy from the corrupting effects ofundue corporate power by amending the United States Constitution.
On October 1, 2011, the Coalition of Concerned Patriots of Bradenton passed a
resolution standing with the Move to Amend campaign, and calling for constitutional
remedies to counter corporate influence.
On October 4, 2011, the South Miami City Commission passed a resolution calling for aconstitutional amendment to end corporate personhood.
On October 14,2011, the Fruitland Park ch'rtrr "'Pax Christi passed a resolution in
supPort of a constitu;;. >ttt~~ z:nendtnent and tht: ~,:!~ :e to A1w.:nd campaign.
On October 20, 2011, the Social Justice Committee of the Universalist Unitarian Church
in Venice approved a resolution that condemns the Supreme Coutt's decision on Citizens
United and supports a constitutional amendment to reverse the ruling.
On October 27, 2011, the Palm Beach County of Progressive Democrats passed a
resolution calling for an amendment to end corporate personhood and reject the notionthat money is speech.
On November 14, 2011, citizens in Orlando passed a resolution calling for aconstitutional amendment to overturn the decision in the Citizens United case.
Furthermore, the resolution rejected the notion that 'money is speech.'
In November of2011, the Cutler Bay City Council passed a resolution calling for anamendment to the Constitution to overturn the Citizens United decision.

Appendix-5

92
On December 1,2011, the Southwest Florida Coalition for Peace and Justice passed a
resolution supporting a constitutional amendment to reverse the Supreme Court's
a. . rislon on Citizen" fT ... t
On March 15,2012, the Tampa Bay City council unanimously passed a resolution callingfor Congress to amend the Constitution to rectifY the Supreme Court's interpretation of
corporate rights and corporate engagement in the electoral process.
On March 19,2012, the Key West City Commission passed a resolution condemning theCitizens United decision, stating that corpomtions should not have the same rights as
people.
On June 4,2012, the City Commission of DeLand Florida passed a resolution
instructing our State and Federal delegations to work to get money out of politics.

Georgia
State Resolutions
HR 1377, introduced on February 15, 2012 by State Representative Stephanie Benfield,
opposing the United States Supreme Court's ruling in Citizens United v. Federal
Election Commission and requesting a constitutional amendment "to restore republican
democmcy to the people of the United States."

HawaiiState Resolutions
SCR22S, introduced on March 10,2010 by Senator Gary L. Hooser (D-7), expresses
disagreement with the Citizens United ruling and calls on the US Congress to pass aconstitutional amendment barring the use of "person" when defIning "corpomte entity."
SRl16, introduced on March 10, 2010 by Senator Gary L. Hooser (D-7), expresses
disagreement with the Citizem United ruling and calls on the US Congress to pass aconstitutional amendment barring the use of "person" when defIning "corpomte entity."
HCR282 HD1, introduced on March 10,2010 by Rep. Bob Herkes (D-5) - passed boththe House and Senate and was adopted on April 28 rh , 2010, expresses disagreement with
the Citizens United ruling and calls on the US Congress to propose an amendment to theConstitution of the United States to permit Congress and States to regulate expenditureof funds by corpomtions engaging in political speech.
HR204, introduced on March 10,2010, also by Rep. Bob Herkes (D-5), expresses
disagreement with the Citizens United ruling and calls on the US Congress to pass aconstitutional amendment barring the use of "person" when defming "corpomte entity."
HB36, introduced on January 20, 2011 by Rep. Karl Rhoads (D-28), proposes a state
constitutional amendment to provide that freedom of speech applies only to natural
persons.
HeR 51 - a joint measure - was introduced on February 11,2011 by Rep. RoyTakumi(D-36), proposing that the United States Congress pass a constitutional amendment thatprovides that corpomtions are not persons under the laws of the U.S. or any of its
jurisdicticilal subdivisions.
.
HR44-a house measure - passed in the Ho~ on April 14, 2011. The bill was
introduced by Rep. Roy Takumi (D-36). Proposes that the United States Congress pass aconstitutional amendment that provides that corpomtions are not persons under the lawsof the U.S. or any of its jurisdictional subdivisions.

Idaho
State Resolutions
HIM012, introduced on February 24, 2010 in the House State AfFairs Committee,
expresses disagreement with the Citizens United ruling and calls on the US Congress totake action through legislation or a constitutional amendment.

Illinois
Local Resolutions Passed
Appendix-6

93
On May 5, 2012, the town of Warren passed a resolution calling for an end to corporate
personhood.
( ,on. "/~ay 14. 2012. ~;;"" "~":~:;'.:I{~~l l ,H)' \~ ~';":::l'" ':~,'animously pt!ssea. ~ rescll~t;r;.n
supporting a constitutional amendment overturn the Citizens United rulmg. The city's
resolution explicidy states its support for all such constitutional amendments introducedin Congress, including the one co-sponsored by U.S. Senator Dick Durbin (D-Ill.).

,0

On June 4, 2012, Galesburg became the second city in Illinois to pass a City Council
resolution calling for Congress to overturn the Supreme Court's decision in Citizen's
United v. FEC byway of Constitutional Amendment.

IndianaState Resolutions
On June 20,2012 the Bloomington City Council passed a resolution calling to overturn
Citizens United.

Iowa
State Resolutions
SR 113, introduced by State Senator Jeff Danielson, passed in the Senate by a 7-4 voteon March 12,2012. The resolution expresses disagreement with the current
interpretation of corporate rights and the Citizens United decision, and calls forCongress to enact appropriate legislation to regulate and restrict corporate spending inelections.

KansasState Resolutions
SCR 1617, introduced on March 18,2012 by State Senators Holland, Faust-Goudeau,Francisco, Haley, Hensley and Steineger, opposing the United States Supreme Court's
ruling in Citizens United v. Federal Election Commission, and requesting a
constitutional amendment to repeal corporate personhood.

KentuckyState Resolutions
HR 14, introduced by Representative Rollins on the January 4, 2011 General Assembly
regular session, calls upon Congress to amend the Constitution to prevent corporate
control of elections.

Maine
Local Resolutions Passed
On June 14,2010, the town of Monroe passed a resolution denouncing the Citizens
United decision.
On January 18,2012, the city council of Portland, Maine, passed a resolution in support
of a constitutional amendment that would provide that corporations are not people.
On February 21, 2012, the city council of Waterville passed a resolution in support of aconstitutional a:.nep'~mppt ~het would overturn the CitiLCIl: United decision.
On February 26, 2012, the town of Great Pond passed a resolution in support of aconstitutional amendment that would overturn the Citizens United decision.
On March 11,2012, Selectmen of the tOwn of Freedom unanimously agreed to allow
citizens to vote on a resolution calling for a constitutional amendment to cla.ri.fY that
corporations are not people. The Town Meeting was held on March 11 and a majority of
the 65 meeting participants were in favor of a non-binding vote to abolish corporate
personhood
On March 26, 2012, the Bangor City Council passed in a 5-3 vote a resolution calling fora constitutional amendment to overturn the Citizens United decision and stating that
corporations are not entided to the same rights of natural persons.
On April 11, 2012, the Fairfield City Council unanimously passed a resolution calling fora constitutional amendment to overturn the Citizens United decision and stating that
corporations are not entided to the same rights of natural persons.
Appendix-7

94
On May 14,2012, the city council of Winslow passed a resolution supporting anamendment to the U.S. Constitution that would clarifY that money is not speech andr:omoratjons are not- nprC"nn~.'.

On May 15,2012, the Bar Harbor City Council unanimously passed a resolution callingfor a constitutional amendment to overturn the Citiuns United decision and stating that
corporations are not entided to the same rights of natural persons.
On June 2,2012, the attendees of the Town Meeting of Leeds passed a Town Warrant tocall for a constitutional amendment to overturn Citizens United.
On June 4, 2012 the town of Mount Desert, ME passed an article denouncing theCitizens United decision
On June 13, 2012, the town Arrowsic approved an article denouncing the Citizens
United decision.
On June, 18,2012 the Newcasde Board of Selectmen passed a resolution denouncing
Citizens United and calling for an end to corporate personhood
On June 26, 2012 Southwest Harbor Board of Selectmen passed a resolution denouncing
the Citizens United ruling.
In June of 2012, the city of Shapliegh has passed a resolution denouncing the Citizens
United decision.
In June of2012 the Bethel Board ofSclectmen passed a resolution denouncing theCitizens United decision.
In June of2012 the town of Liberty, ME has passed a resolution denouncing the Citizens
United decision.
In June of 2012, the town of Vassalboro, have passed a resolution denouncing theCitizens United decision.

MarylandState Resolutions
On January 19,2012, State Senator Jamie Raskin introduced a letter to the Maryland
General Assembly. It sharply disagrees with the Supreme Court's decision on Citizens
United and calls for a constitutional amendment to be sent to each state for ratification to
overturn the ruling. The majority ofmemhers in the House ofDe1egates and State
Senate have signed this letter in agreement.
Local Resolu tions Passed
On January 23, 2012, the Greenbelt City Council passed a resolution that supported a
Maryland General Assembly Letter to Congress calling for a constitutional amendment
to overturn Citizens United.
On January 24, 2012, the College Park City Council passed a resolution that supported a
National General Assembly Letter to Congress calling for a constitutional amendment tooverturn Citizens United and clarifY that corporations are not people protected by theFirst Amendment.
On February 21, 2012, the Prince George's County Council passed a resolution
expressing support for a Maryland General Assembly Letter to Congress calling for areversal of the Citi""li> Tjnited decision and to restore fair dections and democraticsovereignty to the peuple.
On March 6,2012, the Mt. Rainier City Council unanimously passed a resolution
supporting a Maryland General Assembly Letter to Congress that calls for campaign
financing and spending by corporations should be limited and not protected under theFirst Amendment. It seeks to create a constitutional amendment to overturn the Citizens
United decision.
On May 21, 2012, the city council of Baltimore passed a resolution in support of aconstitutional amendment abolishing corporate personhood.
Massachusetts
State Resolutions
SD 772, introduced by State Senator Jamie Eldridge on January 21, 2011, the Free
Speech for People resolution calling for the United States Congress to pass and send thestates for ratification a constitutional amendment to restore the First Amendment andAppendix-8

95
fair elections for the people. Currently being heard by the Joint Committee on the
Judiciary.
;:}j~~2 intr0duced b~,· ~,~"'e .,~n~~ror, EldnllS~" \"~::: ieg-ishtion.is reh:1ve to aC(Y""d ..ltah-t'tv

for corporate political spending.
H.1985 By State Representative WaIz of Boston, a petition ofWolf and others furlegislation to strengthen certain provisions of the campaign finance laws Joint Committee
on Election Laws.
CitylLocal Resolutions

In April of20ll, the town ofYarrnouth passed a resolution in a town hall meeting
demanding a constitutional amendment to dismantle corporate personhood.
On April 4, 2011, Provincetown passed resolution calling on the United States Congress
to pass and send to the states for ratification a constitutional amendment to restore theFirst Amendment and fair elections to the people, and calling on the Massachusetts
General Court to pass resolutions requesting those actions.
On April 24, 2011, the town of Leverett passed Move to Amend's model resolution at a
townhall meeting.
On April 26, 2011, the town of Truro passed a resolution calling on the United States
Congress to pass and send to the states for ratification a constitutional amendment torestore the First Amendment and fuir elections to the people.
On April 26, 2011, the town of Wellfleet passed a resolution calling on the United States
Congress to pass and send to the states for ratification a constitutional amendment torestore the First Amendment and fuir elections to the people.

In May of20ll, Lanesborough citizens passed a resolution that supports the overturningof the Citizens United decision, stating that the Supreme Court's findings were wrong
and clarifYing that corporations are not people.
On May 2, 2011, the town of Great Barrington passed a resolution calling upon the
United States Congress to pass and send to the states for ratification a constitutional
amendment that Congress and the states will regulate the use of funds for political speechby any corporate entity.
On May 3, 2011, the town of Brewster passed a resolution calling for the Congress topass and send to the states for ratification a constitutional amendment to restore the First
Amendment and fuir elections to the people.
On May 3, 2011, the town of Dennis passed a resolution calling on the United States
Congress to pass and send to the states for ratification a constitutional amendment torestore the First Amendment and fuir elections to the people.
On May 8,2011, the town of Orleans passed a resolution calling On the United States
Congress to pass and send to the states for ratification a constitutional amendment torestore the First Amendment and fair elections to the people.
On May 9, 2011, the town of Chatham passed a resolution calling on the United States
Congress to pass and send to the states for ratification a constitutional amendment torestore the First Amendment and fair elections to the people.
On May 12,2011, Williamstown passed a resolution calling on the United States
Congress to pass an~ $o!ld to the state~ for ratification a constitutional amendment torestore the First Ani!... .!.:.. ~lii~UI ~hJ tair ekctions tc ~ he ·people.

On October 13,2011, the town of Somerville passed a resolution condemning theSupreme Court's decision on Citizens United and supports a constitutional amendment
to overturn the ruling.
On October 24, 2011, the Cambridge City Council passed a resolution that supports aconstitutional amendment to overturn the Supreme Court's ruling on Citizens United.
On December ·1, 2011, Psychologists for Social Responsibility in Brookline approved aresolution that condemns the Supreme Court's decision on Citizens United and calls fora constitutional amendment to reverse the ruling.
January 5, 2012, the town ofWestport passed a resolution condemning the Supreme
Court's decision on Citizens United and supports a constitutional amendment tooverturn the ruling.

Appendix-9

96
On January 30, 2012, Cambridge passed a second resolution that supports aconstitutional amendment to overturn the Supreme Court's decision on Citizens United.

.•\)n "FebruaI,),-14,. '<',J; " ;.3· .... ri 1y ':oun6': .'~ !....~ .,;' ~ns$ed 2. re'O"}!Jt10n that conu':.".mns theSupreme Court's ruling on Citizens United and supports a constitutional amendment toreverse the decision.
On February 29, 2012, the city of Boston passed a resolution condemning the Supreme
Court's ruling on Citizens United and calling for a constitutional amendment to overturnthe decision.
On March 20, 2012, the members of the Falmouth Town Meeting declared their support
for abolishing corporate personhood, affirming their belief that the First Amendment
only protects people.
On March 24,2012, a town hall meeting in Lincoln passed a resolution that supports aconstitutional amendment to overturn the Supreme Court's ruling on Citizens United.
On March 27,2012, the Newburyport Town Council passed a resolution that supports aconstitutional amendment to overturn the Supreme Court's decision on Citizens United.
On April 4, 2012, the town of Provincetown passed a resolution condemning theSupreme Court's ruling on Citizens United and supporting a constitutional amendment
to overturn the decision.
On AprilS, 2012, the town of Falmouth passed a resolution condemning the Supreme
Court's ruling on Citizens United and supporting a constitutional amendment tooverturn the decision.
On April 10, 2012, the town of Oak Bluffs passed a resolution that supports aconstitutional amendment to overturn the Supreme Court's decision on Citizens United.
On April 10,2012, the town of Edgartown passed a resolution that condemns theSupreme Court's decision on Citizens United and calls for a constitutional amendment tooverturn the ruling.
On April 10, 2012, the town of West Tisbury passed a resolution supporting a
constitutional amendment to overturn the Supreme Court's ruling on Citizens United.
On April 10, 2012, the town of Tisbury passed a resolution condemning the Supreme
Court's decision on Citizens United and supporting a constitutional amendment tooverturn the ruling.
On April 12, 2012, the town of Natick voted in favor of a resolution that calls for aconstitutional amendment to overturn the Supreme Court's ruling on Citizens United.
On April 19, 2012, the Northampton City Council unanimously passed a resolution
calling for a Constitutional amendment that would reverse a Supreme Court decision
giving corporations the same rights as people.
On April 23, 2012, the town of ChiLnark passed a local resolution condemning theSupreme Court's ruling on Citizens United and supporting a constitutional amendment
to reverse the decision.
On April 24, 2012, the town ofFrammgham passed a resolution that supports aconstitutional amendment to overturn the Supreme Court's ruling on Citizens United.
On April 27 ,2012, the ",wn "f::ontord vote,] toa resolution that CDnde~ns theSupreme Court's decision on Citizens United and calls for a constitutional amendment tooverturn the ruling.

rass

On April 28, 2012, the town of Leverett passed a second resolution condemning theSupreme Court's ruling on Citizens United and calling for a constitutional amendment toreverse the decision.
On April 28, 2012, the town of Nahant voted to pass a resolution that supports aconstitutional amendment to overturn the Supreme Court's ruling on Citizens United.
On April 30, 2012, the town of West Newbury voted to pass a resolution that supports aconstitutional amendment to overturn the Supreme Court's ruling on Citizens United.
On May 1,2012, the town of Reading passed a resolution condemning the Supreme
Court's Citizens United decision and calling for a constitutional amendment to overturnthe ruling.
Appendix-l0

97
On May 1,2012, the town of Shelburne passed a resolution condemning the Supreme
Court's Citizens United decision and calling for a constitutional amendment to overturn..t...-erulin..~.
On May 1, 2012, the town of Deerfield passed a resolution condemning the Supreme
Court's Citizens United decision and calling for a constitutional amendment to overturnthe ruling.
On May 1, 2012, the town of Shutesbury passed a resolution condemning the Supreme
Court's Citizens United decision and calling for a constitutional amendment to overturnthe ruling.
On May 3, 2011, the town of Dennis, MA introduced, voted and passed article 51 callingon the United States Congress to pass and send to the states for ratification aconstitutional amendment to restore the First Amendment and fair elections to thepeople.
On May 5,,2012, the town ofCumrnington passed a resolution calling for an amendment
to Constitution to overturn the Citizens United decision.
On May 5, 2012, the town of Pelham passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 5, 2012, the town of Warren passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 5, 2012, the town of Ashfield voted in favor (with only two dissenting votes outof 65) to support a resolution in favor of amending the Constitution to overturn the
Citizens United decision.
On May 7, 2012, the Amherst City Council unanimously passed a resolution calling for aconstitutional amendment to overturn the Citizens United decision.
On May 7, 2012, the town of Sheffield passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 7, 2012, the town of Warwick passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 7, 2012, the town of Swampscott passed a resolution calling for an amendment
to Constitution to overturn the Citizens United decision.
On May 8, 2012, the town of Colrain passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 8, 2012, The town of Aquinnah passed a local resolution supporting S. 772 State
resolution to overturn Citizens United and restore first amendment rights.
On May 9, 2012, the town of Orleans passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 9, 2012, the town of West Tisbury passed a resolution calling for an amendment
to Constitution to overturn the Citizens United decision.
On May 9, 2012, the town ofBuck1and passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 10, 2012, the city council of Salem passed a resolution that condemns theSupreme Court's ruling on I'iti'ens United and 2'-'Pp0tts aconstituti""al amendment toreverse the decision.

On May 14,2012, the town of Conway passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 14,2012, the town of Needham passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 14, 2012, the town of Rowe passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
On May 14,2012, the town of Medway passed a resolution approving Article 49 andurged support for the Senate Bill 772: A Resolution Restoring Free Speech, sponsored bystate Sen. Jamie Eldridge.
On May 15, 2012, the town of Boxborough passed a resolution calling for an amendment
to Constitution to overturn the Citizens United decision.
Appendix-II

98
On May 15,2012, the town of Otis passed a resolution calling for an amendment toConstitution to overturn the Citizens United decision.
•.

dn.IVlay j j, 2012~ tn·:: (;jry ((H1HC·t o~\'\Tf)!'(:'e~!":' .. ~ssed ? l:esoh,ti:J.r:.·.~h~t (,o!'Fk'~'Jnr theSupreme Court's ruling on Citizens United and supports the People Rights amendment.
On May 16,2012, the town of Arlington passed a resolution condemning the Supreme
Court's Citizens United decision and calling for a constitutional amendment to overturnthe ruling.
On May 21, 2012, the town of Somerset passed a resolution abolishing corporate
personhood.
On May 22, 2012 the town of Brookline passed a resolution calling for a constitutional
amendment to overturn the Supreme Court's decision in Citizens United vs. FEe.
On May 23, 2012, the town of Richmond passed a resolution to abolish corporate
personhood.
On May 25, 2012, the town of Stockbridge passed a resolution in opposition to the
Citizens United decision.
On May 25, 2012, the town of Charlemont passed a resolution in support of abolishingcorporate personhood.
On May 29, 2012, the town of Newbury passed a resolution in support of abolishingcorporate personhood.
On June 4, 2012, the City Council of QlIincy passed a resolution ealling for aconstitutional amendment to overturn the Supreme Court's decision in Citizens United
vs. FEe.
On June 4,2012, the Town of Wendell passed a resolution to show their support for anamendment to the US Constitution that would proclaim that the rights listed in the billof rights are for people, rather than corporations.
On June 7,2012, the town of Bernardston passed a resolution advocating for the reversalof the Supreme Court's decision in Citizens United v. FEC by way of a constitutional
amendment.
On June 20, 2012 the Lenox Board of Selectmen passed a resolution calling to overturnthe Citizens United decision.
On July 9,2012 The Newton Board of Alderman passed a resolution calling for a
Constitutional amendment to overturn Citizens United last night by a near unanimous
vote (23-1).

Michigan
Local Resolutions Passed
On December 1, 2011, the Dickinson County Democratic Party passed a resolution thatcondemns the Supreme Court's ruling on Citizens United and calls for a constitutional
amendment to overturn the decision.
On February 2, 2012, the Emmet County Democratic Committee Executive Board
declared support for the Move to Amend resolution, which calls upon Congress topropose an amendment to the Constitution that would abolish corporate personhood andthe judicial interpretation that moaey >l'eech.

'0

On February 9, 2012, the 15th Congressional District Democratic Organization ofMichigan passed a resolution that calls upon Congress to propose an amendment to theConstitution that would abolish corporate personhood and the judicial interpretation thatmoney is speech.
On March 28, 2012, Gogebic County Democratic Party passed a resolution, affirming its
belief that corporate personhood must be abolished by amending the Constitution.

Minnesota
State Resolutions
HF0914, introduced on March 7, 2011 to the Minnesota State Legislature, provides that
corporations are not natural persons and proposes a constitutional amendment tooverturn the Supreme Court's ruling on Citizens United.

Appendix-12

99
SF683, introduced on March 9,2011 to the Minnesota State Senate, condemns theSupreme Court's decision on Citizens United and calls for a constitutional amendment to
H .... ..:rs~ thl!.

tulints .

Local Resolutions Passed
On March 1,2011, the Minnesota Democrats passed a resolution calling for aconstitutional amendment to define an individual as a "natural person" in hopes to abolishcorporate personhood.
On August 9,2011, the Minnesota Coalition of Peacemakers passed a resolution seeking
to abolish corporate personhood by an amendment to the U.S. Constitution.

In October of 2011, the Minnesota Retiree Council of the AFL-CIO passed a resolution
to support Move to Amend.
On December 13 th , 2011, the city council of Duluth, Minnesota passed a resolution in
opposition to the Citizens United decision and the legal definition of corporate
personhood.
OnJune 11,2012, the St. Paul City Council passed a resolution supporting an
Amendment to the United States Constitution that only human beings, notcorporations, are protected by democratic rights.
On June 15,2012, the Minneapolis City Council unanimously passed a resolution calling
for the end to corporate personhood.

Mississippi
State Resolutions
HC 108, introduced on AprilS, 2012 by Representative James Evans, provides for aconstitutional convention with the sole purpose of proposing an amendment to theUnited States Constitution that would abolish the concept of corporate personhood.
Local Resolutions Passed
On December 13, 2011, citizens inJackson passed a resolution supporting a
constitutional amendment to overturn the Citizens United decision and clarifYing that
corporations are not people protected by the First Amendment.
On June 2, 2012, the Mississippi Democratic Party declared its support for an
Amendment to the Constitution to abolish corporate personhood and the doctrine thatmoney is speech.

MissouriState Resolutions
HCR 38, introduced by Rep Tracy McCreery, calls for a constitutional amendment thatclearly states that corporations are not human beings and do not have the same rights as
the citizens of the United States.
Local Resolutions Passed
On June 14,2012 Kansas City, MO C()llDcil unanimously approved a resolutir.~'flwrSday suppor'ting a c(,!l~tivjtion~ iii1.f;!l(in.: .. H 0ve!'turning the Supreme Crmrt~:;"Citizens United" ruling of2010.

MontanaState Resolutions
HI 10, introduced by Representative Hill on February 2, 2011, proposes that Congresspass a constitutional amendment to overturn the Citizens United decision.
Local Resolutions Passed
On August 23, 2011, the Missoula City Council voted to place a referendum on the 2011
ballot that urges federal and state lawmakers to amend the U.S. Constitution to clearlystate "that corporations are not human beings and do not have the same rights as
citizens." On November 8, 2011, Missoula voters approved a local ballot referendum
urging Congress to propose a constitutional amendment that clearly states that
Appendix-13

100
corporations are not people and do not have the same rights as citizens by a three to one
margin.
@o,(Jrl,M:.!y ..•L 2012r rllC: CJ'), {·(',',.·.ncil Ol,r;,.;~ . . .~'-.' ;. -<: un2..nir~~()Usj;, ~~;:;5sed.3 rC""f)t'\l';D!1.!nsupport of an amendment to overturn the Citizens United decision, and providing that
corporations are not people.

New Hampshire
State Resolutions
In May 2004, the Democratic Party of New Hampshire, passed a resolurion declaringthat ·Corporations shall not be considered "persons" protected by the Constitution of theUnited States or by the Constitutions of the states that so declare; and the rights ofindividual, natural persons shall be privileged over any and all rights that have been
extended to artificial entities."
HCR 1, introduced by Rep. Weed and Rep. Car on January 5th , 2011, proposes that
Congress pass a constitutional amendment that provides that constitutional rights such as
free speech apply to living persons, and not to corporations, for the purpose ofelectioneering, among others.
HR 8, introduced by Rep. Pierce and Rep. Richardson on January 6th , 2011, proposesthat Congress pass a constitutional amendment that would limit corporate spending inelections, and thus overturn the Citizens United ruling.
Local Resolutions Passed
On March 14,2012, citizens in a Bradford Town Hall Meeting voted to pass a resolution
condemning the Citizens United decision and calling for a constitutional amendment tooverturn the Supreme Court's ruling.

New}eJ:Sey
State Resolutions
AR 64, introduced on March 4, 2010, by State Representative Herb Conway, calls on
Congress to propose an amendment to the United States Constitution to provide thatwith regard to corporation campaign spending, a person means only a natural person forFirst Amendment protection of free speech.
SR 47 introduced on Feb 16,2012 by State Senator JefrVan Drew, calls on Congress topropose an amendment to the United States Constitution to provide that with regard tocorporation campaign spending, a person means only a natural person for First
Amendment protection of free speech.
Local Resolutions Passed
On April 10, 2012, the Franklin Township Council (Somerset County, NJ) passed a
Resolution (#12-167) in support of a constitutional amendment to overturn the Citizens
United decision.

New Mexico
State Resolutions
foint ,Memorial 36, introduced on February 11,2011 by Rep. Mimi Stewart (D-21),
failed by one vote on the House floor. It expresses strong opposition to the Supreme
Court's decision in Citizens United v. Fed:",,; " ""ction Commission and call upon the
United States congress to propose and send tv"," states for ratification an amendment to
the United States constitution to restore free speech and fair elections to the people of theUnited States.
HM 4, introduced by Representative Stewart, passed in a 38-29 vote in the House on
January 30, 2012. SM 3, introduced by Senator Fischmann, passed in a 20-9 vote in the
Senate on February 7, 2012. On February 11, 2012, the New Mexico joint legislature
passed a resolution calling for Congress to propose a constitutional amendment tooverturn the Citizens United decision, becoming the second state in the union to do so.
Local Resolutions Passed
On January 11, 2012, citizens in Santa Fe passed a resolution calling for a constitutional
amendment to overturn the Citizens United decision and clarifY that corporations are notpeople.
Appendix-l 4

101
On February 25, 2012, the Taos City Council passed a resolution condemning theSupreme Court's decision on Citizens United and supporting a constitutional
amendment tf) OV~ .. ·.. l.,p ."Iin,gOn April 17, 2012, the Taos --:ounty Commission unanimously approved a resolution
requesting Congress to propose an amendment to the Constitution to counter the effectsof the Citizens United ruling.
New York
State Resolutions
K01016, introduced by Assemblyman James Brennan on March 7,2012, passed the New
York State Assembly's Law Election Committee, awaiting a floor vote, provides that
the US Congress to send the states a constitutional amendment to overturn the Citizens
United case, which would enable corporate spending in elections.
Local Resolutions Passed
In February of2011, the Essex County Democratic Committee voted to approve a
constitutional amendment that would establish money is not speech and that people, notcorporations, are people with constitutional rights.
In March of2011, the Progressive Coalition of Northern New York approved the Moveto Amend resolution.
On December 6, 2011, the Albany Common Council passed a resolution stating that
"Corporations are not People".
On December 28, 2011, the Brighton Town Council voted to pass a resolution in support
of abolishing corporate personhood.
On January 4'h, 2012, the city council of New York City passed a resolution "supporting
an amendment to the Constitution to provide that corporations are not entitled to theentirety of protections or 'rights' of natural persons."
OnJanuary 11,2012, citizens in Buffulo passed a local resolution calling for aconstitutional amendment to overturn the Citizens United decision and clarifY that
corporations are not natural persons.
On February 1,2012, the Common Council ofIthaca, NY voted 8-1 in favor of aresolution calling on Congress to pass an amendment to end corporate personhood.
On February 13,2012, the town board of Danby voted unanimously for a resolution
calling on Congress to pass an amendment to end corporate personhood.
On March 1,2012, the city ofTroy passed a resolution calling for a constitutional
amendment to overturn the Citizens United decision and clarifYing that corporations are
not people.
On March 26, 2012, the Yonkers City Council passed a resolution calling for aconstitutional amendment providing that corporations are not entitled to the entirety ofprotections or "rights" of natural persons, specifically so that the expenditure of corporate
money to influence the electoral process is no longer a form of constitutionally protectedspeech.
On May 2, 2012, the Allegheny County Council approved a resolution in support of anamend),nent that would overturn the Citizen& ~;u;ted decision.

On May 8,2012, the Mt Kisco Village Board of Trustees unanimously passed a
resolution calling for a constitutional amendment that declares corporations are not given
the same legal status as people and that corporate spending for influencing elections is
not deemed to be a form of speech.
On June 6 and 19,2012, the Tompkins County legislature passed three resolutions on 6/6
and 6/19 calling for campaign fInance reform, abolition corporate personhood, and aconstitutional amendment to overturn Citizens United.
OnJune 13, the Mount Vernon City Council adopted a resolution calling for aconstitutional amendment to overturn the Citizens United decision.

North Carolina
Local Resolutions Passed
Appendix-15

102
On April 1, 2011, The Alamance County Democrats passed a resolution at theirdemocratic convention, calling for a Constitutional amendment to abolish corporate.~s~n~o~??,., .," "'~"On December 10, 2011, the Progrcs;ive Democrats of North Carolina passed the Moveto Amend model resolution.
On January 9,2012, the Chapel HillTown Council passed the Move to Amend
Resolution stating that corporations are not people and that money is not speech.
On January 17, 2012, the Carrboro Board of Alderman unanimously passed a resolution
in to clarifY that "corporations are not people and money is not speech."
On February 14,2012, citizens in Asheville passed a local resolution calling for thereversal of the Citizens United decision, stating that corporations are not people
protected by the First Amendment.
On February 21, 2012, the board of commission of Orange County passed a resolution
supporting an amendment to Constitution that would provide that corporations are notpeople.
On April 2, 2012, the Franklin Board of Alderman passed a resolution calling upon the
North Carolina General Assembly to petition Congress for a constitutional amendmentthat would overturn the Supreme Court's ruling on Citizens United.
On April 4, 2012, the Board of Aldermen of Bryson City, NC passed a resolution to
support a constitutional amendment to abolish the doctrine that money is speech andthat human beings, rather than corporations, are protected by democratic rights.
On April 17, 2012, the Highlands Town Council passed a resolution supporting anamendment to the Constitution that would provide that corporations are not people, andthat money is not speech.
On May 2, 2012, the Allegheny County Council approved a resolution in support of anamendment that would overturn the Citizens United decision.
On May 24, 2012, the City Council of Durham supported a constitutional amendmentthat would "defend democracy from the corrupting effects of corporate power."
On July 3rd 2012, Raleigh N.C passed a resolution condemning Citizens United andcalling for a constitutional amendment to overturn the decision by a 6-3 vote.

Ohio
Local Resolutions Passed
On February 6, 2012, the city council of Athens unanimously passed a resolution
rejecting the Citizens United decision and calling for an amendment to redefine
corporate constitutional rights.
On February 23, 2012, the Oberlin City Council unanimously approved a resolution
calling upon the US Congress and Ohio legislature to create a constitutional amendmentthat would reverse the Citizens United decision and reinstates that free speech is a rightof persons, not corporations.
On June 18,2012, Cleveland Heights City Council passed a resolution calling to abolishcorporate personhood and overturn the Supreme Court's decision in Citizens United.

Oklahoma'State Resolutions
On May 17,2003, the Oklahoma Democratic Party, at their state convention, approved aresolution opposing corporate personhood.

OregonState Resolutions
HIM 9, introduced by Representative Phil Barnhart onJanuary 10, 2011, provides that
Congress to pass a constitutional amendment that would "restore the First Amendment
and fair elections to the people."
Local Resolutions Passed
Appendix-16

103
On June 23,2011, the Democratic Party of Douglas County, Oregon voted to pass a
resolution opposing Corporate Personhood and in support of the Move to Amend
or~?~i~~t.i~<?~.
On January, 12,2012, the Pordand lAty Councll voted unanimously in favor of aresolution put for by Mayor Sam Adams, which declared that money is not speech andcorporations are not people.
On February 7, 2012, the Klamath County Democratic Central Committee passed a
resolution that supports a constitutional amendment to overturn the Supreme Court's
decision on Citizens United and clarifies that corporations are not people protected by
the First Amendment.
On February 15th, 2012, the city council of Eugene, Oregon passed a resolution
encouraging Congress to pass an amendment to the Constitution that would overturn the
Citizens United decision.
On March 7,2012 The Coos Bay City Council passed a local resolution calling for stateand federal legislators to support and pursue a constitutional amendment to end
corporate personhood.
On April 12, 2012, the City Council of Yachats rejected the Citizens United ruling,
passing a resolution in afftrmation of the belief that money is not speech and that theConstitution protects the rights of human beings.
On April 23, 2012, the City Council of the City of West Lin voted to pass a resolution in
opposition to corporate personhood.
On May 15,2012, the City Council of Newport passed a resolution in support of aconstitutional amendment abolishing corporate personhood and the doctrine that money
is not speech.
On June 19,2012 Ashland City Council passed a resolution supporting U.S. Senator
Merkley's effort to amend the Constitution to make clear Congress has authority toregulate campaign finances and expenditures.

Pennsylvania
State Resolutions
HR 653 introduced on March 9,2010 by Rep. Steve Santarsiero (D-31), expresses
disagreement with the Citizens United ruling and calls on the US Congress to call a
constitutional convention.

Senate Resolution 264, will be introduced shortly by Senator Jim Ferlo, who announced
his intention to do so on March 9,2012. The bill calls to support the nationwide effort toamend the US Constitution to overturn the Citizens United ruling.
Local Resolutions Passed
On January 1, 2010, the Lehman City Council passed a resolution condemning theSupreme Court's decision on Citizens United and supporting a constitutional
amendment to reverse the ruling.
On December 30, 2011, the Pittsburgh City Council passed a resolution calling for aconstitutional amendment to abolish corpor;-,te personhood and return our elections backto the American people.
On February 14,2012, the town of Lancaster passed a resolution calling for aconstitutional amendment to overturn the Citizens United decision.
On May 2, 2012 Allegheny County, PA passed a resolution calling for a constitutional
amendment to overturn the Citizens United decision.
On May 24, 2012 the Wilkes-Barre City Council voted 4-1 in favor of calling for to
overturn the Supreme Court's Citizens United ruling.
On June 21, 2012 the Philadelphia City Council passed a resolution calling for aconstitutional amendment to overturn the Supreme Court's Citizens United decision.
(nothing on United4 map)
On June 25, 2012 the Reading City Council approved a resolution urging lawmakers toamend the U.S. Constitution to abolish so-called corporate personhood.

Rhode Island
Appendix-I 7

104
State Resolutions

H 61.;;6. introduced on Mav 18,2010 bv Rep. Thomas Winfield, proposes that Coo!,:ress:)<ii;t::.a l~'m!< ~")ti(.m"8: ;-n-·,r. "';r;{:;>t·tn O'!T!..···~\·>::iti:tf'Tl'i V!'!:c:J rlccis~m!..

H 8186, introduced on May 27, 2010 by Rep. David Segel (D-2), applies to theCongress of the United States to call a constitutional convention.

H7899 was introduced by Speaker of the House Gordon Fox and passed on May 8th •S2656 was introduced by State Senate President Teresa Paiva-Weed and passed on April
25"',2012. These companion resolutions call for Congress to pass an amendment tooverturn the Citizens United decision and its subsequent, related cases.
Local Resolutions Passed
On June 7,2012, the Providence City Council unanimously passed a resolution callingfor a constitutional amendment to overturn the U.S. Supreme Court decision lifting thefederal ban on corporate campaign spending.

South Dakota
State Resolutions
HCR 1018 introduced on March 2010, by Rep. Ed Iron Cloud (D-27) and Sen. Jim
Bradford (R-27), failed on a 24-43 vote on the day after it was introduced. The resolution
urged the Congress and the States to propose a constitutional amendment that would
reverse Citizen's United V. FEC decision.
Vermont
State Resolutions
IRS11 , introduced January 21, 2011 by Senator Virginia Lyons (D-Chittendon), andpassed in the Senate on April 12, 2012 urges the United States Congress to propose anamendment to the United States Constitution, which provides that corporations are notpersons under the laws of the United States or any of its jurisdictional subdivisions. The
bill passed the House on April 19"', 2012, with a 92-40 vote, which made Vennontthe
third state in the country - following Hawaii then New Mexico - to ratifY a Citizens
United-related resolution.
Local Resolutions Passed
On February 28, 2011, the town of Lincoln approved a resolution to end corporate
personhood in their community.
On March 6,2012, in Albany, citizens voted in favor of a ballot that supports aconstitutional amendment to overturn the Citizens United decision and clarifY that
corporations are not people.
On March 6, 2012, at a town hall meeting in Barnet, citizens passed a resolution
condemning the Supreme Court's ruling on Citizens United and called for aconstitutional amendment to reverse the decision.

On March 6; 20]2~ :.1' R .... !t,·~~ ::itjzen~ [If'jlrly "<;"1.nimousl} ¥<:~~:~ !o pass a rc~ob..tion
calling for a constitutional amendment to overturn the Citizeru; United decision andclarifY that corporations are not people.
On March 6,2012, citizens at a town hall meeting in Brattleboro passed a resolution thatcondemns the Citizens United decision and supports a constitutional amendment toreverse the Supreme Court ruling.
On March 6,2012, in Brandon, citizens voted to pass a resolution calling for campaign
finance reform and urging both the Vermont and US Congresses to support the same
resolution. It supports a constitutional amendment to overturn the Citizens United
decision.
On March 6, 2012, a town hall meeting in Bristol voted to support a resolution that calls
for a constitutional amendment to reverse the Supreme Court's decision on Citizens
United and dariJY that corporations are not people protected by the First Amendment.

Appendix-IS

105
On March 6,2012, citizens in Burlington passed a resolution that calls for aconstitutional amendment to overturn the Citizens United decision and clarifY that('('I'7~ra~o.ns g,re np" ;,pn!",lOn March 6,2012, in Calais, citizens at a town hall meeting voted to pass a resolutionthat condemns the Supreme Court's decision on Citizens United and supports aconstitutional amendment to reverse the ruling.
On March 6,2012, a town hall meeting in Charlotte voted in favor of a resolution that
calls for a constitutional amendment to overturn the Citizens United decision and clarifY
that corporations are not people.
On March 6, 2012, citizens in Chester passed a resolution that supports a constitutional
amendment to reverse the Supreme Court's decision on Citizens United.
On March 6, 2012, in Chittenden, citizens at a town hall meeting voted in favor of aresolution that condemns the Supreme Court's decision on Citizens United and supports
a constitutional amendment to overturn the ruling.
On March 6, 2Q12, a town hall meeting in Craftsbury voted to pass a resolution
supporting a constitutional amendment that would overturn the Citizens United decisionand clarifY that corporations are not people.
On March 6,2012, citizens in a town hall meeting in East Montpelier passed a resolutionthat condemns the Supreme Court's rulings on Citizens United and calls for aconstitutional amendment to reverse the ruling.
On March 6,2012, in Fayston, citizens passed a resolution that favors a constitutional
amendment to overturn the Citizens United decision and clarifY that corporations are notpeople protected by the First Amendment.
On March 6, 2012, a town hall meeting in Fletcher voted in favor of a resolution that
supports a constitutional amendment to reverse the Supreme Court's decision on Citizens
United.
On March 6, 2012, citizens at a town hall meeting in Granville voted to pass a resolutionthat condemns the Supreme Court's rulings on Citizens United and supports aconstitutional amendment to reverse the decision.
On March 6,2012, in Greensboro, citizens passed a resolution calling for a constitutional
amendment to overturn the Citizens United decision and clarifY that corporations are notpeople protected by the First Amendment.
On March 6, 2012, citizens in Hardwick unanimously voted in favor of a resolution that
calls for a constitutional amendment to reverse the Supreme Court's decision on Citizens
United.
On March 6,2012, a town hall meeting in Hartford voted to pass a resolution thatcondemns the Supreme Court's decision on Citizens United and supports a constitutional
amendment to reverse the ruling.
On March 6, 2012, in Hartland, citizens passed a resolution calling for a constitutional
amendment to overturn the Citizens United decision and clarifY that corporations are notpeople.
On March 6, 2012, citizens at a town hall meeting in Hinesburg voted in favor of aresolution that condeIT'ns the Supreme Court', ruling on Citizens United and supports acono;;titutional amend~.r":'llt . '. ovet"fUp1 th.e" rl .... f';~~ ........
On March 6, 2012, a town hall meeting in Jericho voted to pass a resolution supporting a
constitutional amendment to overturn the Citizens United decision and clarifY that
corporations are not people protected by the First Amendment.
On March 6, 2012, citizens at a town hall meeting in Marlboro voted in favor of aresolution that supports a constitutional amendment to reverse the Citizens United
decision and clarifies that corporations are not people.
On March 6,2012, in Marshfield, citizens passed a resolution that condemns theSupreme Court's decision on Citizens United and supports a constitutional amendmentthat reverses the ruling.
On March 6,2012, a town hall meeting in Middletown Springs voted in favor of aresolution that supports a constitutional amendment to reverse the Supreme Court's
decision on Citizens United and clarifies that corporations are not people protected by
the First Amendment.
Appendix-19

106
On March 6, 2012, citizens at a town hall meeting in Monkton voted to pass a resolution
calling for a reversal of the Supreme Court's decision on Citizens United .
•>~ On lYIarc.r. 6~ 20].1., ~'l· !r!:)rJ:go.mrl}', a !:r;v,rp n~l! meering,ra<;~ed., a res0h.t~fnn th:.::condemns the Supreme Court's decision on Citizens United and favors a constitutional
amendment to reverse the ruling.
On March 6,2012, a town hall meeting in Montpelier voted in favor of a resolution that
supports a constitutional amendment to overturn the Citizens United decision andclarifies that corporations are not people.
On March 6,2012, citizens in Moretown voted to pass a resolution that favors a
constitutional amendment to reverse the Supreme Court's ruling on Citizens United.
On March 6, 2012, in Mt. Holly, citizens at a town hall meeting passed a resolution thatcondemns the Supreme Court's decision on Citizens United and supports a constitutional
amendment to reverse the ruling.
On March 6, 2012, a town hall meeting in Newbury voted in favor of a resolution that
calls for a constitutional amendment to overturn the Citizens United decision and claruy
that corporations are not people protected by the First Amendment.
On March 6,2012, citizens at a town hall meeting in Newfane voted to pass a resolutionthat condemns the Supreme Court's ruling on Citizens United and favors a constitutional
amendment to reverse the decision.
On March 6, 2012, in Norwich, citizens passed a resolution that suppons a constitutional
amendment to reverse the Citizens United decision and claruy that corporations are notpeople.
On March 6,2012, a town hall meeting in Peru voted to pass a resolution that condemns
the Supreme Court's decision on Citizens United and favors a constitutional amendmentthat would overturn the ruling.
On March 6,2012, citizens in Plainfield voted in favor of a resolution that calls for aconstitutional amendment to reverse the Supreme Court's ruling on Citizens United andclarifies that corporations are not people protected by the First Amendment.
On March 6, 2012, at a town hall meeting in Putney, on two ballots, citizens
unanimously passed a resolution that condemns the Supreme Court's decision on
Citizens United and favors a constitutional amendment to overturn the ruling.
On March 6, 2012, in Randolph, citizens at a town hall meeting voted to pass a
resolution that supports a constitutional amendment to overturn the Citizens United
decision.
On March 6,2012, a town hall meeting in Richmond voted in favor of a resolution thatcondemns the Citizens United decision and calls for a constitutional amendment toreverse the Supreme Court's ruling.
On March 6,2012, at a town hall meeting in Ripton, citizens unanimously passed a
resolution that supports a constitutional amendment to overrum the Supreme Coures

ruling on Citizens United and clarifies that corporations are not people.
On March 6, 2012, in Rochester, citizens voted to pass a resolution that condemns theSupreme Court's ruling on Citizens United and favors a constitutional amendment toreverse the decision.

On March 6, 2612, -..~u ....... ,,'t ~i. "': w\\n ita..... 1'11-, \.tu~ in Roxbury voted in ~avor vf aresolution that supports a constitutional amendment to reverse the Supreme Court's
decision on Citizens United.
On March 6, 2012, a town hall meeting in Rutland City passed a resolution that favors a
constitutional amendment to overturn the Citizens United decision and clarifies that
corporations are not people protected by the First Amendment.
On March 6, 2012, in Rutland Town, citizens voted to pass a resolution condemning theSupreme Court's ruling on Citizens United and support a constitutional amendment toreverse the decision.
On March 6, 2012, citizens in Sharon voted in favor of a resolution that suppons a
constitutional amendment to reverse the Supreme Court's decision on Citizens United.

Appendix-20

107
On March 6,2012, a town hall meeting in Shelburne passed a resolution that favors a
constitutional amendment to overturn the Supreme Court's ruling on Citizens United..'

1f1d clarH1:,:!' that C(\1"nor~ti('","<;: "rf" Pf)t Of"" i...

On March 6, 2012, citizens at a town hall meeting in Shrewsbury voted to pass a
resolution that condemns the Supreme Court's decision on Citizens United and favors a
constitutional amendment to overturn the ruling.
On March 6,2012, in South Burlington, citizens voted in favor of a resolution that
supports a constitutional amendment to reverse the Supreme Court's ruling on Citizens
United.
On March 6,2012, a town hall meeting in Starksboro passed a resolution that favors a
constitutional amendment to overturn the Citizens United decision and clarifies that
corporations are not people protected by the First Amendment.
On March 6, 2012, citizens in Sudbury unanimously voted in favor of a resolution thatcondemns the Supreme Court's ruling on Citizens United and supports a constitutional
amendment to reverse the decision.

On March 6,2012, in Thetford Center, citizens at a town hall meeting voted to pass a
resolution that favors a constitutional amendment to overturn the Citizens United
decision and clarify that corporations are not people.
On March 6,2012, a town hall meeting in Tunbridge passed a resolution that condemns
the Supreme Court's decision on Citizens United and supports a constitutional
amendment to reverse the ruling.
On March 6,2012, citizens at a town hall meeting in Underhill voted in favor of aresolution that supports a constitutional amendment to overturn the Citizens United
decision.
On March 6, 2012, in Waitsfield, citizens passed a resolution that favors a constitutional
amendment to reverse the Supreme Court's ruling on Citizens United and clarifies that
corporations are not people protected by the First Amendment.
On March 6, 2012, at a town hall meeting in Walden, citizens voted to pass a resolutionthat condemns the Supreme Court's decision on Citizens United and favors a
constitutional ameodment to overturn the ruling.
On March 6,2012, citizens in Waltham voted in favor of a resolution that supports aconstitutional amendment to overturn the Supreme Court's ruling on Citizens United.
On March 6, 2012, a town hall meeting in Warren passed a resolution that condemns theSupreme Court's ruling on Citizens united and favors a constitutional amendment toreverse the decision.
On March 6, 2012, in West Haven, citizens voted to pass a resolution supporting a
constitutional amendment to reverse the Citizens United decision and clarifying that
corporations are not people.
On March 6, 2012, at a town hall meeting in Williamstown, citizens voted in favor of aresolution that supports a constitutional amendment to overturn the Supreme Court's
decision on Citizens United.
On March 6,2012, citizens in Williston passed a resolution that condemns the Supreme
Court's ruling on Citizens United and favo,," a constitutional amendment to reverse thedecision.
On March 6,2012, in Windsor, citizens at a town hall meeting voted to pass a resolutionthat supports a constitutional amendment to reverse the Citizens United decision andclarifies that corporations are not people protected by the First Amendment.
On March 6, 2012, a town hall meeting in Winooski voted in favor of a resolution that
supports a constitutional amendment to overturn the Supreme Court's decision on
Citizens United.
On March 6,2012, citizens in Woodbury passed a resolution that condemns the Supreme
Court's ruling on Citizens United and favors a constitutional amendment to reverse thedecision.

On March 6, 2012, at a town hall meeting in Woodstock, citizens supported a resolutionthat calls for a constitutional amendment to reverse the Supreme Court's decision on
Citizens United and clarifies that corporations are not people.
Appendix-21

108
On March 6, 2012, in Worcester, citizens voted to pass a resolution that supports aconstitutional amendment to overturn the Supreme Court's mling on Citizens United.

Virgbj-,State Resolutions
On December 11 rh, 2011, the Democratic Party of Virginia ratified a resolution against
the Citizens United ruling, which provides "that corporations are not entided to the samerights in our elections as people" and that "the Supreme Court's ruling in Citizens United
was incorrecdy decided."
On June 2,2012, the Democratic Party of Virginia State Convention declared support
for a constitutional amendment to overturn the Citizens United decision.
Local Resolutions
On June 4,2012, the City Council of Charlottesville passed a resolution in support of aconstitutional amendment overturning the Citizens United ruling.

Washington
State Resolutions
SJ]V18027, introduced on February 4, 2010 by Senator Ken Jacobsen (D-46), expresses
disagreement with the Citizens United ruling and calls on the US Congress to pass aconstitutional amendment.
S1M 8007, introduced on February 16, 2011 by State Senator Adam Kline, requests a
constitutional amendment declaring that corporations are not persons under U.S. law.
On Apri130, 2011, the Washington State Democratic Party passed a resolution entided"Amending the U.S. Constitution to Reserve Constitutional Rights for People, not
Corporations." The resolution calls on the state legislature to pass a joint resolution
urging Congress "to pass and send to the states for ratifIcation a constitutional
amendment to establish that a corporation shall not be considered a person eligible forrights accorded to human beings under the U.S. Constitution."The resolution goes on to
say that the amendment should stipulate that "the use of money to influence elections or
the acts of public officials shall not be considered a protected form of speech."
Local Resolutions Passed
On December 1,2011, the Jefferson County Democratic Party passed a resolution
supporting a constitutional amendment to reverse the Supreme Court's ruling on
CItizens United.
On March 5,2012, the Port Townsend City Council unanimously passed a Municipal
Government resolution that condemns the Supreme Court's ruling on Citizens Unitedand supports a constitutional amendment to overturn the ruling.
On April 23, 2012, the Jefferson ('')11Oty Board of Commissioners passed. reooWtion in
suppor:t of an anlend~hL.i[L to t:l"; Unite': Stall! L J ...~3-titution to abolish COrf(}rn.~',:
personhood.
On May 14,2012, the Searde City Council unanimously passed a resolution condemning
the Citizens United decision and calling upon Congress to pass a constitutional
amendment to overturn it.
On June 4, 2012, the City Council of the City of Bellingham passed a resolution in
support of amending the US Constitution to declare "that corporations are not entided tothe constitutional rights of natural persons, and further to ensure that the expenditure ofcorporate money to influence the electoral process is no longer a form on constitutionallyprotected speech."
OnJune 4, 2012, the City Council of Langley, WA passed a resolution calling forCongress to adopt a Constitutional amendment that would overturn Citizens United.
The amendment would declare that money is not speech and that corporations are notpeople.
Appendix-22

109West Virginia
Local Resolution~a, O'l;aimary12, 2C112, t:':' l\lartinsbtirg \.-"1 Cou ••.:il adopted a resolutlon ~allingfor
constitutional amendment to reverse the Supreme Court's ruling on Citizens United andclarifYing that corporations are not people.
On January 26, 2012, the Jefferson County Commission passed a resolution thatcondemns the Supreme Court's decision on Citizens United and supports a constitutional
amendment to reverse the ruling.
On March 5,2012, Charles Town passed a resolution calling on the US Congress toamend the constitution to state that only living persons are endowed with constitutionalrights and that money is not the same as free speech.
On April 3, 2012, the Saint Albans City Council unanimously passed a resolution thatcondemns the Supreme Court's decision on Citizens United and presses for aconstitutional amendment to overturn the ruling.

Wisconsin
State Resolutions
On March 6, 2011, the Democratic Party of Wisconsin adopted a resolution in support
of a constitutional amendment overturning the Citizens United V:FEC case.
On February 9th, 2012, Representatives Mark Pocan and Chris Taylor introduced
legislation (yet to be numbered) that provides that Congress amend the Constitution to
overturn the Citizens United decision and related cases.
Local Resolutions Passed
On March 28,2011, the Milwaukee County Democrats passed a resolution that calls foramending the U.S. Constitution to make clear that corporations are not persons and thatmoney is not speech.
In April of 2011, 84% of voters in Madison, WI approved a resolution containing thefollowing:"Shall the City of Madison adopt the following resolution: RESOLVED, the City ofMadison, Wisconsin, calls for reclaiming democracy from the corrupting effects of undue
corporate influence by amending the United States Constitution to establish that

1. Only human beings, not corporations, are entided to constitutional rights, and
2. Money is not speech, and therefore regulating political contributions andspending is not equivalent to limiting political speech."
3. On April 1, 2011, American Federation of State, County, and Municipal
Employees (AFSCME) 40 passed a resolution advocating for a constitutional
amendment to oppose corp'"'1":1'e ":;rsonhoo<L and to declare that Hloney is notspeech.

On April 3, 2012, voters in West Allis passed a ballot resolution that rejects the Supreme
Court's decision On Citizens United and calls for a constitutional amendment to reverse
the ruling.
On April 5, 2011, Dane County voters approved the following resolution by 78%:
"Should the US Constitution be amended to establish that regulating politicalcontributions and spending is not equivalent to limiting freedom of speech, by statingthat only human beings, not corporations, are entitled to constitutional rights?"

Appendix-23

110
On June 4, 2012, the common council of Wisconsin passed the Move to Amend model
resolution, providing that corporations are not people and money is not speech.
On June 4,2012, the lvlonona City Council passed a resolution calling on Congress topass a constitutional amendment to overturn the Citizens United decision.

Wyoming

Local Resolutions Passed
On May 15,2012, the Sheridan County Democrats passed a resolution providing that
corporations are not people and money is not speech.

SOURCES:
http://movetoamcnd.orgl
http://frcespecchforpeople.orgl
http://democracyisforpcoplc.org/
http://www. rcsolutionswcck.orgl
http://www. thealliancefordemocrac)"orgl
http://www.duhc.org!

Appendix-24

111
MISCELLANEOUS SUBMISSIONS FOR THE RECORDAMERICAN CIVllll8£RTlES UNION

July 24, 2012
The Honorable Richard Durbin,
ChairmanSubcommittee on the Constitution,
Civil Rights and Human Rights,
Committee on the Judiciary
224 Dirksen Senate Office Bldg.
Washington, DC 20510
AMERICAN CIVIL
LIBERTIES UNIQN'

Re:

The Honorable Lindsey Graham,
Ranking Member
Subcommittee on the Constitution,
Civil Rights and Human Rights,
Committee on the Judiciary
224 Dirksen Senate Office Bldg.
Washington, DC 20510"Taking Back Our Democracy: Responding to Citizens United
and the Rise of Super PACs"

Dear Chairman Durbin and Ranking Member Graham:
On behalf of the ACLU, a non-partisan organization with over a half million
members, countless additional supporters and activists, and 53 affiliates
nationwide, we submit this statement for the record on today's hearing. We
urge the subcommittee to exercise caution in responding to the Supreme
Court's decision in Citizens Unitedv. Federal Election Commission,l and westrongly urge the Senate to resist any effort to amend the Constitution tolimit the First Amendment.
The ACLU has been involved in the public debate over campaign financereform for decades, providing testimony to Congress on these issues
regularly and challenging aspects of campaign finance laws in federal court.
We applaud the subcommittee in its efforts toward the laudable goal of fairand participatory federal elections. We support numerous campaign
disclosure and fair election measures that promote and inform the electorate.
These include public financing, tightening regulations governing
independent expenditures to bar coordination with campaigns andcandidates, disclosure that preserves issue-based anonymous speech rights
and either free or discounted broadcast advertising rates for political
advertisements. We address these non-controversial proposals below.
We have serious concerns on several other fronts. Perhaps most serious are
the various proposals for constitutional amendments that would either limit
corporate First Amendment protection or directly limit the First Amendment

558 U.S. 50 (2010).

112
itself. We also oppose the various iterations of the DISCLOSE Act,2 which would require nonpartisan "issue advocacy" groups like the ACLU, the National Rifle Association and the Sierra
Club to disclose the identity of certain members. Finally, we note common misconceptions
about the decision in Citizens United, a decision which has very little to do with the "problem" ofindependent expenditure-only committees (colloquially, and inaccurately, known as "Super
PACs").
The election of public officials is an essential aspect of a free society, and campaigns for public
office raise a wide range of competing civil liberties concerns. Any regulation of the electoraland campaign processes must be fair and evenhanded, understandable, and not unduly
burdensome. It must assure integrity and inclusivity, encourage participation, and protect
privacy and rights of association while allowing for robust, full and free discussion and debate by
and about candidates and issues of the day. Measures intended to root out corruption should notinterfere with freedom of expression by those wishing to make their voices heard, and disclosure
requirements should not have a chilling effect on the exercise of rights of expression andassociation, especially in the case of controversial political groups.
Further to these core principles, we offer comments in four areas.
1. Do Not Amend the Constitution.
There are at least 14 separate constitutional amendments pending in Congress to address thedecision in Citizens United. 3 Although they differ in the particulars, all take one of two generalapproaches. Several would limit constitutional rights to "natural persons." The rest provide for
either Congressional regulation of contributions and expenditures, or directly limit contributions
and expenditures by corporations, including for-profit and non-profit entities. Both approaches
would effectively "amend" the First Amendment to limit speech rights, and would be the firsttime in history that the Constitution has been amended to restrict, rather than expand, individual,
constitutionally guaranteed rights. 4
The amendatory process for the Constitution is as burdensome as it is to prevent precisely thesetypes of amendments. While the ACLU is concerned about the impact of aggregated wealth,including that of corporations and unions, on the political process, taking the radical step ofamending the Constitution to restrict speech rights cannot be the answer.
Furthermore, we fear an amendment to "fix" Citizens United would serve as precedent for otherrestrictive constitutional amendments. The ACLU has long fought numerous constitutional
amendment proposals designed to restrict constitutional rights and liberties, including
S. 3369, S. 2219, H.R. 4010, 112th Congo (2012). S. 3369 is identical to S. 2219, the previously introduced
version of the DISCLOSE Act, but removes the disclaimer requirements of 2219 and moves the effective date of thelegislation beyond the 2012 elections. H.R. 4010 resembles in significant part S. 2219.

See League of Women Voters, Review of Constitutional Amendments Propcsed in Response to Citizens
United, http://www .1 wv ,org/contentJreview-constitutional-amendments-proposed-response-citizens-united# finl.
Even Prohibition was not as extreme a restriction on individual liberties as these proposals. The right toconsume alcohol is not constitutionally enumerated.

2

113
amendments prohibiting or pennitting the prohibition of flag "desecration," the so-called
Victims' Rights Amendment, and birthright citizenship amendments (that would repeal the 14th
Amendment's guarantee of citizenship to individuals born in the United States). These Citizens
United amendments are just as misguided (and unnecessary), and we urge all members ofCongress to oppose them if they are ever fonnally considered.
Finally, those amendments targeting corporate personhood would have serious civil liberties
implications in that they could inadvertently strip away, for example, Fourth and 14th
Amendment rights that derivatively protect the "natural person" constitutional rights ofshareholders and other stakeholders. Great care should be taken when legislating in this area.
Any constitutional amendment restricting corporate speech would pose a danger that simply
cannot be overstated for other rights and civil liberties.

2. Set the Record Straight on Citizens United
As recently reported by Matt Bai, chief political correspondent for the New York Times,
assigning total blame for "money in politics" to Citizens United is, at best, "overly simplistic."sCitizens United is a relatively narrow decision. It held that unions and corporations (including
non-profit corporations like the ACLU) can spend general treasury funds on communications
that are not coordinated with a candidate or campaign. That is, they no longer need to fonn apolitical action committee, or PAC, in order to engage in direct political speech (directcontributions to candidates remain totally forbidden).
The simple fact is, unless corporations and/or unions are doing so through disclosure-exempt
501 (c)(4) organizations,6 they have not spent a sizeable amount of money on independent
expenditure-only committees. To date, only about 13 percent of "Super PAC" donations havecome from corporations, and less than one percent from publicly traded corporations. 7 It bears
repeating: virtually all of the relatively small amount of corporate spending is coming fromprivate and most likely closely held corporations, which are often affiliated with a particularly
influential individual. For example, five donor companies share an address in The Villages,
Florida, affiliated with developers H. Gary and Renee Morse. s
Additionally, all indications are that the current state of campaign finance is not a historicalanomaly. There has been a consistent upward trend in campaign expenditures for decades as
television advertising becomes more expensive (because a growing audience and morecompetitive races means more spots need to be purchased cycle after cycle). As Bai noted, theMan Bai, How Much Has Citizens United Changed the Political Game?, N.Y. Times, July 17,2012.

In which case, there should be disclosure to shareholders or members.
Bai, supra note 5. And a Bloomberg Government study has an even lower number-7.6 percent-for theperiod of December 2011 and March 2012. Mark Silva, Super-PACs: Little from Corporations, Bloomberg, July12, 2012, hnp:llgo.bloomberg.com/political-capitaV20 12-07 -12Isuper-pacs-linle-from-corporations/.

Corporate Shells Ramp Up Super PAC Giving, Wash. Times, July 21, 2012,
http://www.washingtontimes.comlblogiinside~po1iticsl2012!iuU21/corporate-shells~ramp~super-pac·giving/.

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114
percentage increase in outside expenditures (i.e., not direct contributions) has remained relatively
static even after Citizens United (rising 164% from 2004 through 2008 and 135% from 2008
through 2012).
Finally, despite the deserved media attention surrounding the significant expenditures by Super
PACs favoring Republican candidates and policies, there is no indication thus far that theincrease in political spending has disproportionately benefitted anyone party or candidate. The
Romney campaign is likely to "outspend" the Obama campaign in this year's presidential
election. Further, for the first time in history, the GOP-affiliated Super PACs are spending at alevel such that "outside" independent expenditures could outstrip direct contributions.
That said, President Obama was, in 2008, the first major-party candidate to decline publicfinancing due to the remarkable number of relatively small direct contributions he received(which is testament, further, to the resiliency of popular democracy in America).9 Additionally.
even the Super PAC race is far from one-sided. Of the top individual contributors, threeincluding comedian Bill Maher, actor Morgan Freeman and CEO of Dreamworks, Jeffrey
Katzenberg-are supporting Priorities USA, the "Obama" Super PAC. And, Priorities USA isaggressively running precisely the type of negative advertising against Mr. Romney that has been
so derided in the current debate, which Professor Thomas Edsall at Columbia University
suggests is a tactic to dissuade white men without college degrees--Obama's least favorable
constituency-from going to the polls. 10
For all the oxygen consumed on Citizens United, the decision in SpeechNow.org v. Federal
Election Commission is of more salience for the Super PAC phenomenon.!! That said, even
before SpeechNow, individuals were free to spend significant amounts of money on politicalspeech and sometimes anonymously. For instance, during the 2004 presidential election, groups
like Moveon.org, America Coming Together, and Swift Boat Veterans for Truth spent significant
amounts of money on political speech.
There should be a public discussion of the problems arising from the influence of aggregatedwealth, be it corporate or individual. Nevertheless, the country must not act with undue haste inchanging our elections laws-and especially should not do so based on faulty information. Weurge the subcommittee and all members of Congress to act on facts, and not hyperbole.

See Shailagh Murray & Perry Bacon Jr., Obama to Reject Public Fundsfor Election, Wash. Post, June 20,
2008, http://www.washingtonpost.com/wp-dynlcontentlarticle/2008/061l9/AR2008061 9009 l4.html.
JO
Thomas B. Edsall, The Politics of Anything Goes, N.Y. Times, July 23, 2012, http://campaignstops.blogs.
nytimes.coml2012/07/23/the-politics-of-anything-goes/.
11599 F.3d 686 (D.C. Cir. 2010). There, the D.C. Circuit held that individual contribution limits tounincorporated "527" committees, named after the section of the tax code, were unconstitutional in light of theholding in Citizens United that uncoordinated expenditures do not give rise to the type of quid pro quo corruption or
the appearance thereof that would justify limiting the First Amendment.

4

115
3. Disclosure and Protecting Anonymous Political Speech Not Mutually Exclusive
Transparency drives democracy. The American electorate has a legitimate interest in knowing
the source of significant support for a candidate. Accordingly, relatively large contributions
and/or expenditures are subject to legitimate disclosure (as they already are). What disclosurerules cannot do is act to chill constitutionally protected associational and expressive rights. 12
13
Unfortunately, the current disclosure legislation pending in Congress would do exactly that.
First, all of the DISCLOSE Acts currently pending would dramatically expand the period of time
during which issue advocates-those taking no position in support of or in opposition to a
14
political candidate--must disclose their donors if they wish to publish issue ads. The Act
would expand the "electioneering communications" period-{;urrently the 30 days before a
primary and the 60 days before a general election--quite significantly. For communications thatrefer to a candidate for the House or Senate, the period would begin on January I of the election
year and end on the election, and would encompass the entire period following theannouncement of a special election up to the special election. For communications mentioning apresidential or vice presidential candidate, the period would extend from 120 days before theprimary or caucus in an individual state, which would radically extend the heightened disclosure
period in numerous jurisdictions.
Additionally, the legislation would expand the definition of independent expenditure, which iscurrently limited strictly to communications that expressly endorse or oppose a candidate, tothose that are the "functional equivalent" of express advocacy. The functional equivalency test,
such as it is, invariably drags in speech that is and should be protected from limitation under theFirst Amendment. This, in fact, was the case in Citizens United, where the communication atissue was an independent documentary critical of then-presidential candidate Senator Hillary
Clinton. Similar communications (assuming they are outside the electioneering communications
window) would trigger disclosure as independent expenditures. And, as the government
conceded in the Citizens United oral arguments, the same logic would extend to a book or othernon-broadcast medium like a pamphlet or sign that could be construed as critical of a candidate,
which is an obvious First Amendment violation. 15
12The constitutional interest in anonymous speech was most obvious during the civil rights era, whensegregationist state governments sought to chill associational activity in civil rights groups. See, e.g., Nat'[ Assoc.

for the Advancement of Colored People v. Alabama, 357 U.S, 449 (1958) (holding NAACP membership lists off
limits to state government seeking to prevent organization's operation in-state).
13

See supra note 2 for a list of the relevant legislation.

14

S. 3369 § (2)(a)(2).

"

Transcript of Oral Argument at 65:2-15, Citizens United v. Fed. Election Comm'n, 558 U.S. 50 (2010) (No.
08-205). Then-Solicitor General Elena Kagan explained that to the extent that a book would be construed as express
advocacy, 2 U.S.C. § 441b would cover that book, but further explained that there would be a good "as-applied"challenge to any enforcement. She further noted that there had never been an FEC action covering a book.
Nevertheless, the government clearly admitted that a book would be covered by the ban in 441b. To the extent thedefinition of independent expenditure is amended to include the functional equivalency test, even a book that does
not expressly say "vote for candidate X," but is highly critical of said candidate, would be covered.

5116Finally, and to be very clear, the DISCLOSE Act would require non-partisan issue advocates likethe ACLU, Planned Parenthood or the National Rifle Association to disclose the identity of somedonors. To the extent that donors contribute more than $10,000 that is spent on electioneeringcommunications, independent expenditures or "covered transfers," their identities must be
disclosed. While the legislation provides for disclosure only with regard to a segregated account,assuming these organizations take the time and trouble to set it up, this legislation will require
membership disclosure for those issue advocates who must rely on larger donations to fundpolitical communications simply because of the economics of their operations (some smallorganizations have, for instance, a limited base of larger donors).
Further, and even with a $10,000 trigger, the present exceptions in the DISCLOSE Act may stillleave the door open to disclosure when a donor had no intention that a gift be used for political
purposes. 16 It is both impractical and unfair to hold contributors responsible for every
advertisement that an organization publishes, which would be required were the entity to spend
more than $10,000 in a cycle on covered communications from general treasury funds, and evendonors who give more than $10,000 may be small relative to the size of the covered
organization's donor base as a whole.
The DISCLOSE Act is likely to do one of two things, particularly when an organization is
engaged in advocacy on controversial issues with which typical donors or members might not
want to be associated publicly. First, the organization might refrain from engaging in public
communications that would subject its donors to disclosure, in which case the organization's
speech will have been curtailed. Alternatively, donors sensitive to public disclosure may refrainfrom giving to the organization (or may cap disclosure just below the trigger threshold), in whichcase the organization's ability to engage in speech will also have been curtailed. In both cases,
those whose names are disclosed would be subject to personal, political or commercial impacts,
and the national political conversation will itself have been chilled.
4. There Are Numerous Productive Alternatives to Constitutional Amendments,
Further Limitations on Speech and Onerous Disclosure Rules.

a. Tighten Coordination Rules to Prevent Sham Independent Expenditures
First, Congress and the Federal Election Commission ("FEC") should turn their attention toensuring that independent expenditures are truly independent. As a matter of economics (not tomention common sense), truly independent expenditures cannot be corrupting or produce theappearance of corruption because there is no promise-tacit or explicit-that the candidate will
provide something of value, including access, in exchange for the expenditure. The individual orgroup spending the money will have to hope that the candidate is listening and receptive.
Additionally, truly independent expenditures are also frequently used to promote salutary policy
debate (e.g., "support candidate X, a true friend of the Second Amendment").

16
S. 3369 § (2)(b)(I)(a)(3)(B). The donor would have to specifically prohibit, in writing, use of the funds forany covered payment. and the covered organization would have to agree aod then segregate the funds.

6

117
During the recently concluded primary season, Super PACs spent millions supporting particular
candidates or-more frequently---{)pposing rivals. That practice has now turned to the generalelection, with Super PACs for and against President Obama and former Governor Romney
taking turns attempting to sway voters. Because these organizations carefully avoid theregulatory definition of coordinating' with a candidate, they are allowed to spend unlimited
sums. In truth, connections between most of these organizations and the candidates they support
run deep. 17
When Newt Gingrich was still a viable candidate, he announced to the world how much hewould benefit from an upcoming independent ad campaign. IS His public comments clearly gave
a clue to his benefactors that he approved. The Super PAC supporting Mitt Romney-Restore
Our Future-is led by a group of people deeply involved in the 2008 Romney campaign. As
noted, Priorities USA is President Obama's Super PAC and it was founded by a former key
staffer to Rahm Emmanuel and a former campaign press secretary. 19 The candidates are allowed
to help the Super PACs raise money and, despite rules to the contrary, the campaigns and theSuper PACs share consultants and communicate routinely across the public airwaves andotherwise.
Regulations that define 'coordination' do not necessarily ensure complete separation between
organizations making independent expenditures and the candidates they support. An ad isconsidered to be coordinated with a candidate-and thus restricted-if it meets certain 'content'
and 'conduct' standards. Most ads do NOT avoid the content standard because they all advocate
the election or defeat of a candidate. To avoid the conduct standard, a Super PAC must, among
other things, avoid employing or contracting with someone who worked for the candidate in thepast four months or must make sure the ads are based on publicly available information. In fact,
most Super PACs supporting major candidates employ plenty of people closely aligned with thecandidates-but they simply make sure they haven't worked for the candidates for over fourmonths. Such a restriction is easy to overcome and it is naive to think that a candidate staffer
who has been intimately involved in the strategic thinking of a campaign will somehow be
uninformed about the strategic and tactical needs of the campaign only four months after leaving.
Congress and the FEC should tighten the definitions so that independent expenditures are truly
independent of the campaigns they are intended to benefit.

J7
See Nicholas Confessore, At 40, Steering a Vast Machine olGOP Money, N.Y. Times, July 22, 2012,
available at http://wwwnytimes.coml2012/07122/us/politics/steering-the-rights-vast-moneymachine.html? r=:2&ref-poIitics~ Mike McIntire & Michael Luo. Fine Line Between 'Super PACs' and Campaigns,
N.Y. Times, Feb. 25, 2012, http://www.nylimes.com!2012/02l26/us/politicsl!oose-border-of-super-pac-and-romneycampaign.hlm!? pagewanted-all.
18
See Quin Hillyer. Did Gingrich Break the Law?, The American Spectator, Spectator Blog, Jan. 9, 2012,
http://spectator.orglblogI2012l01/09/did-gingrich-break-the-law.
19
Dan Eggen & Chris Cillizza, Romney Backers Launch 'Super PAC' to Raise and Spend Unlimited
Amounts, Wash. Post, June 23,2011, http://www.washinglonpost.com!politics/romney-backers-!aunch-s uper-pacl
20l1l06122/AGTkGchH slory.hlml.

7

118b. Support Effective Public Financing
Contrary to the perceived wisdom, public financing of elections can be highly effective. As
noted above, President Obama was the first to turn down the sizeable pool of public financing
dollars for presidential elections, suggesting that the preceding presidential races benefitted
greatly from the financing program. There is no constitutional reason not to enact similar
policy for other federal elections. We applaud Chairman Durbin for his efforts in this area, andthe Fair Elections Now Act is a promising step in this direction. Much of it follows the key
principles of an effective public financing system: funds are available to all-comers who meetcertain local support criteria; it provides a floor for campaign expenditures sufficient to allow
candidates to run a competitive campaign; and it would not be unduly burdensome.
Note, however, that the adjustment mechanism should not be allowed to unfairly disadvantage
the non-cooperating candidate, nor interfere with the voluntary nature of the candidate's choice
to participate in the public finance system.

c. Speed Tax-Exempt Status Determinations
A relatively easy improvement in campaign finance would be to ensure that the Internal Revenue
Service has the resources and expertise to expeditiously approve or deny tax-exempt statusproceedings. One complaint heard over and over is that organizations are able to shield donors
under tax exemption laws without any oversight or enforcement until well after the relevant
election period has ended. 2o At the very least, federal agencies with enforcement authority
should be given the tools to prevent abuses of the system and not rely solely on punishing thoseintent on committing such abuses.

d. Mandate Lowest Cost Political Advertising
The ACLU supports cost reduction mechanisms, which may be the best option for limiting theinfluence of aggregations of money in politics. For instance, we support government-sponsoredcommunications platforms that permit all candidates to state their views. Additionally, we
support extending the franking privilege to challengers in federal campaigns, and we support
providing for free or lowest-cost broadcast television airtime to candidates. Such measures must,of course, be administered in a nondiscriminatory manner and under circumstances that expand
candidates' access to media. But they would, quite literally, end the problem in one fell swoop.

5. Conclusion
The current debate over campaign finance is a worthy one. We share the legitimate concerns ofmany Americans about the influence of "money in politics." Campaigns for federal office are
expensive, and are becoming more so by the day and the cycle. Nevertheless, many of the recent
calls for reform are unnecessary and counterproductive. In the case of proposed constitutional
20

Ionathan Weisman, Democrats to Askfor Curbs on Donor-Shielding Groups, N.Y. Times, July 8, 2012,
http://www.nytimes.coml2QI2/Q7/09fus/politicsfdemocrats-want-fec-to-restrict·donor-shielding-groups.html ("TheF.E.C. is usually slow to respond to such complaints, and any action is unlikely to affect the 2012 election.").

8119amendments and legislation that would require actual social welfare organizations to disclose theidentity of their members, these proposals present civil liberties perils of the highest order.
Despite the influence of money in politics, evidence does not yet exist of a threat that large
donors are monopolizing channels of communication to the exclusion of candidates, parties, or
those organizations funded by aggregations of smaller donors. We strongly urge thesubcommittee, and indeed the whole Congress, to tread lightly in any effort implicating the rightto speak freely on issues of political and public moment.
Please do not hesitate to contact Legislative Counsel Gabe Rottman if you have any questions orcomments at 202-675-2325 or grottman@dcaclu.org.
Sincerely,

Laura W. Murphy
Director, Washington Legislative Office

Michael W. Macleod-Ball
Chief of StaffIFirst Amendment Counsel

Gabriel Rottman
Legislative CounselfPolicy Advisor

cc: Members of the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human
Rights9

120

July 23, 2012

The Honorable Dick Durbin
Chair, Subcommittee on the Constitution, Civil Rights and Human Rights
U.S. Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The American Sustainable Business Council (ASBC) is pleased to offer this testimony in support of aConstitutional amendment to reverse the Citizens United decision which has had an adverse effect on
many businesses, especially small- and medium-sized businesses. We would like to express our gratitude
to you for holding this important hearing and your work to find solutions to the problem of unlimited andunaccountable money in our political system.
The American Sustainable Business Council (ASBC) is a growing national coalition of businesses andbusiness organizations committed to advancing policies that support a vibrant and sustainable economy.
ASBC, through its partner organizations, represents over 150,000 businesses including industry
associations, local and state chambers of commerce, microenterprise, social enterprise, green andsustainable business, advocates for community-rooted business, women and minority business leaders,and investor networks and more than 300,000 business professionals.
In his dissenting opinion to the United States Supreme Court's Citizens United decision, now-retired
Justice John Paul Stevens stated, "a democracy cannot function effectively when its constituent members
believe laws are being bought and sold."This simple statement cuts to the core of the corruption of the democratic process that has occurredfollowing the unleashing of unrestricted, secretive and unaccountable spending to influence U.S. public
policy. It is critical for Congress to act on legislation like the DISCLOSE Act and support a
constitutional amendment to limit the influence of money in politics and restore the democratic system ofgovernance to preserve a fair and free society for all.
By allowing for unrestricted political spending by corporations, Super-PACs and wealthy individuals, thefree speech of the average person and most business owners is severely marginalized. This leads many tobecome either disenfranchised or disillusioned by the system.
The Citizens United decision substantially increases the influence of large corporations and the ultrawealthy in politics-both in detennining who gets elected and how they make decisions once in office.
The ruling asserts that the legal construct of the corporation, created at the state level, should have thesame Constitutional rights as people to "speak" through expenditures in elections.
Executives, owners, investors, and business professionals understand that money can influence political121
decision making and is harmful to our businesses and to the economy. Business confidence in thefairness and equity of the policy making system is the lifeblood of our economy and the democratic
process. As any economist will tell you, rules and institutions do matter, and the Citizens United decision
severely distorts the public debate through which these rules operate and institutions function.
In recent independent polling released by the American Sustainable Business Council, 9 in 10 small
business owners stated they had a negative view of the role money plays in politics. In addition, 66%polled voiced their opinion that the Citizens United decision was bad for small business with only 9%
saying it was good.
The basis for their concern is that as small businesses, they would rather invest in their business andcreate jobs than invest in the electoral process. They are also firm believers in a level playing field thatallows for fair competition. They know they cannot compete with the mountains of cash thrown atpoliticians by large corporations to influence policy. This fact greatly distorts the economic system forsmall businesses and alters the landscape of the efficiency and transparency of markets within which all
businesses compete.
Companies ought to be competing in the marketplace, not in our elections. And citizens ought to be incharge of the government, not corporations. Every company in America should be willing to say that.
That's what nearly 2000 business leaders endorsed when they signed the American Sustainable BusinessCouncil's Business for Democracy (www.businessfordemocracy.com) petitions calling for aconstitutional amendment to reverse the Citizens United decision. ASBC's ally Free Speech For People(www.freespeechforpeople.org).joined in helping to enlist business leaders to sign this call.
Large established industries that spend heavily in campaigns are more likely to defend the interests of thepast, rather than advocate for the industries innovating for the future. They are more likely to becommitted to old energy sources rather than making America a leader in clean and renewable energy.
They are more likely to be companies that are utilizing overseas tax havens and not contributing their fairshare of taxes to the economy, while often receiving the largest government subsidies.
It is small- and mid-sized businesses, entrepreneurs and consumers that create the foundation that drives

economic growth and job creation. The current campaign finance system puts such companies at a distinct
disadvantage to big corporations. This does not lead to good economic policy
As elections become more expensive, the voices of those who can't make contributions or only makesmaller contributions will be drowned out. These disadvantages are exacerbated by the emergence ofSuper-PACs in the aftermath of the Citizens United decision. Recent data from OpenSecrets.org, acampaign finance watchdog group, shows that the top 5 Super-PACs account for almost $144 million of
the $282 million in 2012 election cycle independent expenditures to date.
How can individuals make informed decisions about elected officials and about policies to help create asustainable economy of the future when such a disproportionate amount ofthe information easily
accessible to the public comes from such a concentrated group of voices advocating for the maintenanceof an unsustainable status quo.
Businesses should support a politics oftransparency and fairness, where citizens are the players in our122democracy. Our businesses thrive because they are competitive and well managed
businesses favored the winning candidate in the last election.

not because certain

ASBC and its members hold strong democratic values. We do not want a government in which elected
officials must raise ever increasing funds from business. Nor where a few businesses define the debate on
policy issues or where the majority of business people and citizens alike are silenced in the din ofnegative ads.
The core of democracy lies in the active participation of the constituent members of a society in voicing
their views on how a society and economy should function. The idea of freedom and liberty envisionedby the framers of the constitution was not a concept for corporations and oligarchs. It is a concept for thepeople and citizens ofthis nation, and it is time for the people to once again have a fair and equal voice intheir democracy.

Respectfully submitted,

David Levine
CEO and Co-Founder

123

AMERICANS FOR " ,CAMPAIGN REFORM
Our future depends on it.

Statement For The Record
Submitted by Americans for Campaign Reform
July 18, 2012
Since the beginning of the current election cycle, extremely wealthy individuals,
corporations and trade unions - all of them determined to influence who is in the
White House next year - have spent more than $160 million, excluding party
expenditures.
To put this in some historical context, at this point in 2008, about $36 million had
been spent on independent expenditures (independent meaning independent of acandidate's campaign). In all of 2008, in fact, only $156 million was spent this way.
In other words, we've already surpassed 2008, and it's July.
And so far in this election cycle, the top three contributors, via independent
expenditures, have already spent about $42 million - more than was spent on
independent expenditures by all donors at this point 2008. And at the extreme, one
wealthy individual, Sheldon Adelson, has already spent $20 million in a brazen
attempt to impact the outcome of this year's Presidential election.
As further evidence of the concentration of this spending among the very wealthy,
the top donors to Super PACs represent only 3% of all Super PAC donors but havecontributed almost 80% of the money.
No matter how you slice it, and from what perspective you look at the data, twothings are very clear: There is a lot more money being spent to influence thePresidential election outcome than ever before. And the money is being spent by avery, very small percentage of the population.
It is also clear that the anonymity and detachment of these independent
organizations--Super PACs, 501(c)3s and 527s--is facilitating a dramatic increasein the use of negative advertising. And, it appears that much of the negative
advertising we've seen to date is unencumbered by the truth, making it much moredifficult for voters to make informed, educated decisions about who should lead ourcountry.
This massive influx of special interest money, the anonymity allowed by current law
and the preponderance of negative messages is having a detrimental impact on ourelections and may over time have a more profound and troubling impact on thelong-term ability of our government to meet our most difficult challenges.

124
A close look at a recent race provides a compelling window into the situation.
Paul Hodes was a two-term Democratic Congressman representing the Second
District of New Hampshire who decided, in 2010, to relinquish his seat and run forthe open Senate being vacated by Judd Gregg. Hodes had adequate name recognition
and a reputation as a left-of-center moderate willing to reach out to Republicans andcompromise in the interest of his constituents.
In the general election, Hodes faced Republican Kelly Ayotte, a former NH Attorney
General who had served under both a Republican and a Democratic governor.
Although Ayotte had never run for public office, she was well known and wellrespected, particularly in conservative circles. While serving as Attorney General
she had successfully prosecuted two high-profile murder cases, winning convictions
in both and getting a death penalty sentence in one.
As Hodes said recently, "She had a lot going for her that made her an attractive
candidate in New Hampshire. She had a tough-as-nails trial record, some bipartisan
credibility, and her husband ran a snow plow business!"
From the beginning, Hodes knew this race was going to be different than his
previous campaigns for Congress. While Hodes set a record for the amount of instate contributions he raised, Ayotte was able to attract millions of dollars from outof-state interests determined to keep the open seat in Republican hands. Ayotte also
benefitted from major financial support from the Republican Party.
According to Hodes, when it was all said and done, Ayotte and her supporters had
spent some $25 million. Hodes had spent about $5 million with no significant
financial support from the Democratic Party and virtually no expenditures from any
outside group. Despite Hodes own admission that he spent an astounding 80% of
his time fundraising during the campaign, he was outspent five to one.
In November 2010, Ayotte won the election by about 20%.
Interestingly, Hodes doesn't blame his loss solely on the huge disparity of campaign
spending. He credits Ayotte with running a good, tough campaign and acknowledges
that there were a lot of factors that contributed to her victory.
But Hodes has a lot to say about how the massive amounts of money from outside
New Hampshire changed the race in profound and troubling ways.
He is still frustrated by the anonymity of much of the forces opposing him. "I was
subjected to a barrage of negative advertising in a small state by anonymous out-ofstate interests. As best as I could tell, these were people who had no interest in New
Hampshire. They were only interested in controlling a seat in the US Senate and the125
US Senate itself. The game is on steroids now. Campaigns have become a playgroundfor people with huge amounts of money."
He adds, "It is sobering to understand the extent to which the modern campaign
depersonaIizes politics. Your ideas don't count. Your record doesn't count. All of thedecisions made are about money, and the decisions are made by people with nointerest in New Hampshire."
When talking with Hodes about his experience, it is impossible not to sense his
bitterness and concern.
We believe that this is a critically important and threatening outcome of the Citizens
United and Speech Now decisions. We've already seen many of our most talented
leaders and most capable statespersons leave the House and Senate because thepartisanship and the tone of the debate has become stifling and toxic.
If Hodes' experience is shared by others seeking public office, and campaigning
continues to be so heavily affected by anonymous out-of-district influences running
negative advertising, we fear even more incumbents will decline to run forreelection and many of our most capable potential leaders will not consider runningfor elective office.

In America we elect only 536 people to lead our country: 435 House Members, 100
Senators and the President. It is vital that we elect the finest and most capable
leaders we have. But, unfortunately, this is unlikely unless we enact sweeping
campaign reform laws. Today, candidates must have access to incredible wealth torun for office and are then exposed to the increasing likelihood of an onslaught oflargely anonymous negative advertising like that seen in the Hodes' Senate race.
If we are to overcome the daunting challenges that our country faces, we must do
everything in our power to conduct political campaigns that elicit bold ideas in themost positive atmosphere possible. We must encourage, rather than discourage,
talented people from seeking public office.
Full transparency of political spending, a Constitutional Amendment to overturn
Citizens United, and, most importantly, voluntary public funding offederal elections
should all be openly debated and embraced. However, given the length of time it
would likely take to pass an Amendment, it is important to note that voluntary
public funding--at appropriate levels--wiII still be effective even as Citizens United
remains the law of the land.
We believe that, in the long term, there is nothing more important for our country.

126

Tne Honorable Dick Durbin
Chair, Subcommittee on the Constitution, Civil Rights and Human Rights
U.S. Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

July 11, 2012

On behalf of Ben & Jerry's Homemade, Inc., I write to express our Company's strong support for a
Constitutional amendment that would overturn the Citizens United v FEe decision and create a moredemocratic system of campaign finance in the United States. I thank the Chairperson and thesubcommittee for calling this hearing and receiving this testimony.
Ben & Jerry's is a Vermont corporation and a wholly-owned subsidiary of Unilever, a multinational
consumer products company. Ben & Jerry's manufactures and markets packaged ice cream and frozen
yogurt products in the United States and more than 30 other countries around the world. In addition,
Ben & Jerry's has franchised scoop shops in more than 400 IDeations in the United States and .round theworld.
Ben & Jerry's is guided by a mission statement with three parts: Product, Economic, and Sodal. Our
Social Mission in particular calls us to use our Company to improve the quality of life In the !ocal,
national. and global communities in whkh we operate. In addition, our Company has a long history of
supporting grassroots efforts to promote social and economic justlee, sustainable environmental
practices, and strong communities. I submit this ~1atement today gUided by our Company's Social
Mission and in a sincere effort to add our voice in support ofthe growing movement of citizens acrossthe country who are working to reclaim the original spirit of democracy as envisioned by our country's
founders. This spirit of democracy, as We understand it, is that the elected representatives who govern
our country are accountable to the people alone.

In the interest of full disclosure, as a matter of long-standing Company policy, neither Ben & Jerry's nor
our parent company, UnHever, contributes Company funds to political candidates, political parties! Of

organizations established to support camjldates or parties. We do not have a Political Action Committee
and we do flot contribute to Super PACs.

Since we are not experts on the subject of campaign finance, we wi!! leave it to others to document the
specific harms caused by the current system of campaign finance. We certainly share the concerns ofmany citizen s, public interest groups, and advocates of good government in the United States that theexisting system of campaign finance is broken. It is dear that, through Political Action Committees,SuperPACs, political parties, nonprofit 501 c{4l groups, and other vehicles, many camp.igns are now
fueled primarily by large contributions and independent expenditures from a very small number ofdonors who essentially operate Without meaningful campaign finance limits or disclosure requirements.
This has created a svstem in which many of our elected le.ders are dependent upon financial support
from the wealthiest interests; are eager to support policies that benefit these interests; .re loathe to127
support any policy that challenges these interests; a'e no longer fully accessible to or accountable to thecitizens they represent; and are therefore impaired in their ability to formulate policV that is eXclusively
focused on the common good. While wealthy donors and corporate interests have frequent access toelected leaders, the general public does not even know who is financing the political messages they see
and hear. In short, the system of campaign finance has become profoundly undemocratic; anddemocracy itself is now in danger.
Ben & Jerry's believes it is not the proper role of any for-profit company to interfere in any way inelections for public office. These elections belong to the people" They exist only to allow citizens tochoose their representatives in government. Corporate spending in elections, including directcontributions to candidates and political parties, independent expenditures, or contributions to
nonprofit 501 c(4) groups, are in our view, inconsistent with the spirit and intent of candidate elettions.
Therefore, we would support an amendment to the Constitution that would restrict or ban corporate
spending in elections, or that would allow Congress and state legislatures to restrict Df ban corporate
spending in elections.
There are many for-profit corporations that share our view. Ben & Jerry's is a signatory to a campaign
cailed Business for Democracy, which inclUdes more than 2,000 businesses and business leaders who
have endorsed the following statement
We believe

the American democratic ide-al of "government of the people, by the pc-ople, for thepeople""Vv'e believe the U.s. Supreme: Court~s Citi:::ens UnNe-d l; FEe decisiOil. which allows corpomtioos

to spend unHmitt.'"d money influencing the outcome of public eiectjons.., is inconsistent withlong;<>tanding An1t..-rican democratic principlcs and practice.
We believe it is not the proper role of any for-profit corporation to support or oppose politicalpartie.", or c.;:mdjdates for public office.

Despite the Citl::ens Unit(?d decision~ ilte call on aU companies doing business in the United Statesto rr:frain from spending money for the purpose ofinflucncmg the outcome of pubHe elections,\Vt: support citizen eflbrts to ovcrtum Citizens United through .a COll~iitutionaJ amendment We
believe this Constitutional amendment should not limit commercial fn.-'C speech';Qrporatious from publicly expn::;sing a point ofvkw on existing or proPQ~
regulation, referenda Of other matters of publk policy.

We recognize that corporate spending in elections is only part of the campaign finance problem.
Additional reforms should also be considered to minimize the influence of wealthy interests in public
elections. In our view, ALL entities and individuals should be subject to reasonable limits oncontributions to candidates for public office; All entitieS and individuals should be subject to reasonable
limits on independent election expenditures; and All entities and individuals should be required to fully
disclose all spending in elections. This approach would be most closely in keeping with the spirit of
democratic elections, as we understand them" Ben & lerry's would support passage of an amendment oramendments to the U.S. Constitution that create and/or allow for these reforms.

128
In summary, we support citizen efforts to restore true democratic government in the United States
through meaningful and comprehensive campaign finance reform, We support passage of aConstitutional amendment or amendments to enable this reform, We want the subcommittee tounderstand that there are many businesses, including ours, that are fully aligned with citilen efforts inthis direction,
Thank you for your consideration of our point of view,129, CENTERjor~ COMPETITIVE~ POLITICS
f!"'YN.I,! .III~l'l'ta6 /'l"'. d~."Center for Competitive Politics' Comments on
Senate Judiciary Committee
Subcommittee on the Constitution, Civil Rights and Human Rights"Taking Back Our Democracy: Responding to Citizens United and theRise of Super PACs"

Tuesday, July 24,2012
2:30 pm

Center for Competitive Politics
124 S. West St., Suite 201
Alexandria, Va. 22314
www.campaignfreedom.org

130

Introduction:

The Center for Competitive Politics (CCP), a non- profit education
organization based in Alexandria, Va. is dedicated to promoting anddefending the First Amendment rights of speech, assembly, and petition.
Our mission is to inform the public of the actual effects of money inpolitics and the results of a more free and competitive electoral process.
We are the only organization dedicated solely to protecting First
Amendment political rights. As such, and given our involvement as
amici filers in support of Citizens United in the original Citizens United v
FEC, we submit these comments into the official record of to day's Senate
hearing titled "Taking Back Our Democracy: Responding to Citizens
United and the Rise of Super PACs."
Last month, the United State Supreme Court summarily reversed adecision by the Montana Supreme Court that would have upheld aMontana law prohibiting corpor~te expenditures in political races,
despite the clear holding to the contrary in Citizens United v. Federal
Election Commission. 558 U.S. 50 (2010). This has given renewed vigor
to efforts to overturn Citizens United via a constitutional amendment,
including one recently proposed by Senator Baucus.
Although there are many reasons to support the Supreme Court's
decision in Citizens United as a correct understanding of the First
Amendment, CCP wishes to raise here three points in particular whichhave been widely overlooked in the post-Citizens United discussion.
1. First, while there is no doubt that opinion polls show that the
public disagrees with "Citizens United," at least as that decision is
described in most polls, such polls fail to account for the nuancesof public opinion, ongoing support for the First Amendment, and,in fact, substantial majority support for the actual result inCitizens United.
2. Second, prior to Citizens United, a majority of states alreadyallowed unlimited corporate spending in state elections, without
suffering the negative consequences it is claimed will result fromthe Supreme Court's ruling.
3. Many proposed constitutional amendments would not only
invalidate Citizens United, they would also repeal a host of other131

important First Amendment precedents going back decades.

The Public is not clamoring for a Constitutional Amendment
Numerous public opinion polls have indicated that the public opposes
the Supreme Court's decision in Citizens United. Of this there is no
doubt. This may lead members to believe that a constitutional
amendment to overturn the decision would meet with wide public
approval. A fuller reading of polling data, however, casts serious doubtthat this is true.
For example, a widely cited 2010 poll for the Washington Post/ABC
News asked, "do you support or oppose the recent ruling by theSupreme Court that says corporations and unions can spend as muchmoney as they want to help political candidates win elections?"
http://abcnews.go.com !images IPollingUnitlll 02a6 Trend.pdf.
A 2012 poll by Greenberg Quinlan Rosner Research for Public Campaign
asked a series of wildly biased questions to prime the pump against
Citizens United. For example, respondents were asked if they agreed
with the statements, "I am fed up with the big donors and secret moneythat control which candidates we hear about. It undermines
democracy;" "There is too much big money spent on political campaigns
and elections today and reasonable limits should be placed on campaign
contributions and spending;" and "The middle class won't catch a breakunless we start by reducing the influence of big banks, big donors andcorporate lobbyists," Even with such pump priming, however, just 62%
voiced opposition to Citizens United,
http://campaignmoney.org/files/DemCorpPCAFmemoFINAL.pdf.
In contrast, in 2010, in the immediate aftermath ofthe CU decision, CCP
authorized a poll on public attitudes towards Citizens United andcampaign finance. 1 Rather than ask people if they agreed with "Citizens
United," or describing the case in the terms routinely used in other polls,
we asked respondents about the actual issues in the case. The results
were quite different. For example, when we asked, liDo you believe that
I The poll was conducted by Victory Enterprises, an Iowa polling firm, of 600 likely voters on March
1-2,2010. The poll's margin of error is +-4%.

132

the government should have been able to prevent Citizens United, anincorporated nonprofit advocacy group, from airing ads promoting its
movie?," respondents agreed with the ruling in the case by nearly athree to one margin (51.2 percent to 17.5 percent, with 27 percent
undecided and 4 percent refusing to answer). We then asked about thesecond issue in the case: "Do you believe that the government shouldhave been able to prevent Citizens United, an incorporated nonprofit
advocacy group, from making its movie available through video-ondemand technology?," with a nearly identical result (51.2 percent saidno, the government should not; 19.0 percent said yes).
We asked likely voters, "00 you support or oppose giving the federal
government the ability to censor the production and distribution ofpolitical books and movies that are produced and distributed bycorporations, including publishers like HarperCollins and movie studios
like Warner Brothers?" Fifty six percent opposed giving governmentthat power, while only 25 percent were in favor. And when we asked,"do you support or oppose allowing the federal government to impose
criminal or civil penalties against individual citizens or corporations forspending money to engage in political speech?," only 28 percent
supported such power for the government, versus 50 percent opposed.
Finally, we asked voters directly about the core philosophy guiding theSupreme Court's decision in Citizens United: "Do you think that the
government should have the power to limit how much some people
speak about politics in order to enhance the voices of others?" By anearly four to one margin, respondents said no.
http://www.campaignfreedom.org/doclib/20100304 CCPpoll0304201
O.pdf.

These findings are actually consistent with deep public support for theFirst Amendment and for the Supreme Court's longstanding holdingthat campaign contributions and expenditures are a form of free speechprotected by the First Amendment. For example, a Gallup poll taken on
the eve of the Citizens United decision, in October 2009, found that by atwenty point margin, adults agreed that "money given to politicalcandidates [is] a form of free speech protected by the First Amendment
to the Constitution." Over sixty percent of both Repu blicans and
Democrats agreed. http://www.gallup.com/poll/125333/publicagrees-court-campaign-money-free-speech.aspx.

133

Of course, public opinion on the issue is complex. For example, the same
Gallup poll just cited found that majorities favored limits to candidate
campaigns. Polling data on campaign finance is extremely sensitive towording, and the public is inconsistent in its preferences. In a detailed
study of polling data over many years, political scientist David Primo of
the University of Rochester concludes that on any close examination, thepublic's views on the subject are "wishy-washy," and that "Reflected inthese views may be a tension between freedom of expression and adesire to prevent corruption." But either way, notes Primo, the issue isrelatively unimportant to the public at large: "although campaign
finance arouses great passion among governing elites, the generalpublic does not much care about the issue." David M. Primo, Public
Opinion and Campaign Finance, 12 Indep. Rev. 207 (2002).
Further, in looking at public opinion, it is important to note that the
public knows very little about the campaign finance laws. For example, a1997 survey for the Center for Responsive Politics found that only four
percent of the public knew that corporations were barred by law fromcontributing to campaigns. Further, only one percent of respondents
could answer correctly five questions about campaign finance law.
Princeton Survey Research Associates, Money And Politics Survey (Apr.
1-24,1997). We would imagine that this number on corporate
contributions might be even lower in light of the barrage of news
articles talking about corporate spending after Citizens United, many ofwhich have mistakenly stated that the ruling allows corporate
contributions to campaigns. Another example: Last year, in another polltaken for CCP, this time by Pulse Opinion Research, we found that in the
midst of heavy reporting about "super PACs," 76 percent of respondents
still did not know that "super PACs" must disclose their donors.
Similarly, the aforementioned and oft-cited Washington Post/ABC News
poll did not ask respondents what, or even if, they actually knew
anything about the Citizens United case, before asking their opinion on it(in terms that we consider less than neutral). Our poll, taken
approximately five weeks after the decision and just three weeks after
the Post/ABC Poll, did ask that question. Specifically, respondents wereasked, "Are you aware of or have you followed the recent Citizens Unitedcase, related to corporate and union spending in elections, decided by
the Supreme Court last month?" Only 22 percent answered yes, while 60
percent said no and 18 percent were unsure or refused to answer. This134

helps to further explain why, when asked specifically about the issues in
the case, support for the result vastly outweighed opposition, even as
other polls show strong opposition to something called "Citizens United"
and to large campaign expenditures.
As Columbia University law professor Nathaniel Persily, one of the few
professors who has attempted to learn what Americans really mean
when they answer polls on campaign finance, concludes, "The low
salience that campaign finance reform has in most Americans' political
calculations and most Americans' lack of understanding about thiscomplicated topic necessarily create challenges in tapping opinions onthese issues." Nathaniel Persily and Kelli Lammie, Perceptions ofCorruption and Campaign Finance: When Public Opinion Determines
Constitutional Law, 153 U. Penn. L. Rev. 119, 132 (2004).
To summarize, the assumption that Americans would welcome aconstitutional amendment to amend the First Amendment to overturn
Citizens United is likely misplaced. A poll taken by the left-leaning Public
Policy Polling in November 2010, for the pro-constitutional Amendment
Progressive Change Campaign Committee, found that only 46 percent ofrespondents thought that Congress should even consider - let alonepass - a constitutional amendment to overturn Citizens United.
http://www.huffingtonpost.com/201 0 111 123/voters-strongly-backamen n 787526.html. In probing deep into public opinion on campaign
finance, Professor Primo found that the lopsided polls favoring "reform"
were, on close inspection, not so clear: "those carrying the mantle ofreform," he summarized, "often claim a groundswell of public support
for their positions, which flies in the face of the evidence." Primo, supra.

Unlmited corporate spending was legal in a majority of states
before Citizens United, without the problems predicted by critics of
Citizens United.
Although it is frequently said that Citizens United overturned 100 years
of precedent (this statement is itself untrue - Citizens United foundunconstitutional part of the Taft-Hartley law, at the time a 62 year old
statute, and overturned two precedents, the six year old McConnell v.
Federal Election Commission and the 19 year old Austin v. Michigan

135Chamber of Commerce), in fact on the eve of Citizens United, twenty-eightstates allowed corporate spending in elections, and twenty-six statesallowed unlimited corporate spending in elections. One member of thisCommittee described the threat Citizens United allegedly posed to hisstate by saying, "Vermont is a small state. It would not take more than atiny fraction of the corporate money being spent in other states tooutspend all of our local candidates combined." (Statement of the Hon.
Senator Leahy.) Yet prior to Citizens United, Vermont already allowed
corporate spending in elections. See National Conference of State
Legislators, State Laws Affected by Citizens United, at
http://www.ncsl.orgllegislatures-elections/elections/citizens-unitedand-the-states.aspx.

There is no sign that these states were uniquely poorly governed. In
fact, in a rating of state governments by the Pew Charitable Trust andGoverning Magazine, the six best graded states all allowed unlimited
corporate spending in state elections prior to Citizens United. Katherine
Barrett & Richard Green, Governing: Measuring Performance (2008).2
Research shows that there is no meaningful linkage between campaign
finance laws and public trust and confidence in government. See Primo,
supra; Persily & Lammie, supra.
In fact, the public is highly skeptical that more regulation will improvegovernment.ld. See also CCP Poll, asking, "In 2002 Congress passed the
Bipartisan Campaign Reform Act, also known as 'McCain-Feingold: Thelaw placed new restrictions on corporate and union political spending
and contributions to political parties, with the goal of reducing special
interest influence. Do you believe that McCain-Feingold has beensuccessful in reducing special interest influence?" Only fourteen percent
said yes; forty four percent said no and the remainder were uncertain or
declined to answer. All of this is a further reason to believe that the
public would not be supportive of a constitutional amendment, but alsothat an amendment would not have the desirable effects claimed for it.
Despite much loose language to the contrary, in the 2010 and now 2012
elections, the vast majority of campaign money continues to come fromindividuals; the elections have been highly competitive; and voter
2 Those states were Utah, Virginia, Delaware, Missouri, Georgia, and Washington.

136

turnout has been up, not down,
The Proposed Baucus Amendment would overturn far more than
Citizens United

The proposed amendment to the First Amendment would do much
more than overturn Citizens United. In its present form, it would
invalidate Buckley v. Valeo, 424 U.S. 1 (1976), a landmark of First
Amendment jurisprudence. While we will not review all ofthese cases
here, this committee needs to consider that the Amendment would
appear to overturn numerous free speech precedents, including but notlimited to United States v. c.I.O., 335 U.S. 106 (1948); First National Bank
o/Boston v. Bellotti, 435 U.S. 765 (1978); Citizens Against Rent Control v.
City o/Berkeley, 454 U.S. 290 (1981); Federal Election Commission v.
Massachusetts Citizens/or Life, 479 U.S. 238 (1986); Wisconsin Right toLife v. Federal Election Commission 551 U.S. 449 (2007); FEC v. AFL-CIO,
628 F.2d 97 (D.C. Cir.), cert denied, 449 U.S. 982 (1980); Emily's List v.
Federal Election Commission, 531 F. 3d 1 (D.C. Cir. 2010); Federal
Election Commission v. Christian Action Network 110 F. 3d 249 (4th Cir.
1997); FEC v. American Federation o/State, County and Municipal
Employees, 471 F. Supp. 315 (0.0.C.1979), and FECv. Machinists NonPartisan Political Action Committee, 655 F.2d 380 (D.C. Cir. 1981), certdenied, 454 U.S. 897 (1981) ..

In addition to overturning cases protecting the rights of politically
active groups from across the political spectrum, its broad language
would give the government power to regulate the public discussion ofissues, and limit or ban speech that might be uncomfortable forincumbents or particular political actors. At its core, the proposed
amendment creates an exception to the First Amendment, and does soin the area of political speech, where the courts have consistently notedthat the First Amendment is most vital. Congress should move
extremely cautiously in this realm, lest core and treasured rights topolitical participation be affected in unanticipated ways.

CONCLUSION:

137

As noted, many of our nation's best governed states, and a majority ofall states, allowed unlimited corporate contributions in state elections
even before Citizens United. These states did not suffer from the ill
consequences advocates of a constitutional amendment have said will
occur under Citizens United. The nation has yet to conduct a single
presidential election since the decision in Citizens United; however, inthe congressional elections of 2010 turnout was up and there weremore competitive races than at any time since the Federal Election
Campaign Act was passed prior to the 1976 election. It is far too early to
begin talking about amending the First Amendment, and a carefulreading of public opinion shows that such efforts will not likely be
popular once the public actually sees the likely consequences of such an
amendment.

138

Super PACs and Beyond:
How Shadowy Front Groups
Are Influencing Elections and Distorting Our Democracy
Statement of the Center for Media and Democracy*
Lisa Graves and Brendan Fischer**
Before the United States Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights
July 21,2012
Thank you for holding this hearing on the accelerating crisis of how extraordinary sums ofmoney are being raised and spent by CEOs and corporations to affect who wins political officeand thus who wields power over people and policy. Our democracy is increasingly for sale.
These elections will by far be the most expensive elections in the history ofthe United Statesand, indeed, in the history of the world. And, that's based only on the spending that's disclosed.
Millions and millions of dollars will be raised and spent without any meaningful disclosure to theAmerican people of the true identity of wealthy interests bankrolling int1uential ads and otheractivities. We may never know if they are individuals or corporations -- domestic or foreign.
• The Center for Media and Democracy (CMD) is a non-profit investigative reporting group founded in Madison,
Wisconsin. We publish PRWatch.org, ALECexposed.org, SourceWatch,org, BanksterUSA,org, and the
FoodRightsNetwork,org. Our national reporting and analysis focus on exposing corporate influence on democracy
and media. Recent awards include an Izzy (from the Park Center for Independent Media, named for investigative
journalist I.F. Stone), a Sidney (from the Sidney Hillman Foundation, for investigative reporting), and an award for
Excel1ence in Wisconsin Journalism (for a report written by CMD~s executive director: "'Group Caned 'Citizens fora Strong America' Operates out of a UPS Mail Drop but Runs Expensive Ads in Supreme Court Race?"). We share
our work on F.cebook noder "Center for Media and Democracy" and "tweet" via PRWatch and #ALECexposed .
•• Lisa Graves is the Executive Director of CMD and Editor-in-Chief of CMD pUblications. She previously served
as the Chief Nominations Counsel for the U.S. Senate Judiciary Committee for Chainnan/Ranking Member Patrick
Leahy, Deputy Assistant Attorney General in the Office of Legal Policy/Policy Development of the U.S.
Department of Justice, Deputy Chief orthe Article III Judges Division ofthe Administrative Office of the U.S.
Courts, Senior Legislative Strategist on national security issues for the American Civil Liberties Union, Deputy
Director of the Center for National Security Studies, and adjunct professor at the George Washington University
College of Law. She graduated with honors from Cornell Law School, where she was Managing Editor of theCornell Law Review. She has testified before Congress and her expertise has been cited in numerous television
news programs, newspapers, magazines, and radio shows. Her short commentary is on Twitter via @thelisagr3yes.
Brendan Fischer is the Stair Counsel for the Center for Media and Democracy and a Reporter for its publications.
He graduated with honors from the University of Wisconsin Law School, was a Peace Corp volunteer, and heclerked for the Inter-American Foundation and the Texas Civil Rights Project. He tweets via @pnvatch_brendan.

139
Background. To understand what has changed, here is a thumbnail sketch of federal law in 2010prior to the infamous Supreme Court decision known as Citizens United and the follow-on casenamed SpeechNow. If you had the money to spare, you could give a maximum of $2,500 to eachcandidate, $5,000 per PAC (which theoretically makes independent expenditures not coordinatedwith the candidate), and $30,800 to a political party, for a combined total limit of $117,000 per
cycle. Donations to, and spending by, these entities would be disclosed for anyone to examine.
But, since 2010, there are no limits on how much money you can give to a PAC -- although thedonors and spending will be disclosed. These "Super PACs," which are often run by friends ofthe candidates, are raising enormous sums via $500,000 or $1,000,000 checks. Most Americans
couldn't afford to "max-out" under the previous campaign contribution limits, which well exceed
the income of most voters. However, now a super-minority of people are limited only by theirbank accounts in how much they can give to a PAC to try to alter the course of American history.
A,s a result, one recent analysis found that 80% of the tens of millions raised by SuperPACs, sofar, came from only 196 individuals. They "represent" .0000006 of the country's population, andthey will have an exponentially disproportionate impact on who wins and who loses this election.
The other 99.9999994% of the popUlation is basically out of the equation, except for the effort tomanipUlate the vote through attack ads or pro-candidate marketing pitches in feel-good TV ads.
Although substantial majorities of Americans (Democratic, Republican, Green, or Independent)
believe the Citizens United decision was wrong, that corporations are not entitled to all the samerights as people, and that corporations already have too much power in our democracy, the PAC
donations so far show that it is primarily people, not corporations, fueling these SuperPACs.
The reality is that some CEOs and their families have amassed such a massive "treasury" ofmoney from their corporate investments that their personal capacity to put money into elections
exceeds the treasuries of most companies -- and even some countries. The staggering amounts of
their political donations may advance the corporate agenda and profits of these individuals (andtheir investments), but most of the SuperPAC donations so far are not directly from corporations.
(That is one of the reasons why requiring shareholder approval of corporate election spending is
the right thing to do in a democracy, but it is not sufficient; additionally, such rules will have notaffect very powerful privately-controlled companies, like Koch Industries and Peabody Coal.)
But that's only the part of the spending to influence voters (mainly through ads) that is disclosed.

Special interest groups that do not register as PACs have been emboldened -- by a number of
judicial rulings, by the political deadlock at the Federal Election Commission, and by IRS rulesthat have not kept pace with the times. Some activities are advocacy and public education wellwithin the rules, while others walk, talk, and spend like a PAC to influence elections.
Some act under the rubric of "issue ads" or partisan movies that purport to fall under the taxexempt missions of non-profit groups. But it is no coincidence the ads or movies happen to beaired mainly before elections and are targeted mainly to battleground states and districts. That isprecisely what the non-profit corporation calculatingly named "Citizens United" does. With theway the laws have been distorted, if a group does not "primarily" spend on ads with the magic
words of "express advocacy" (vote for, vote against, or elect) and spends 51% annually on
thinly-disguised "issue" ads under loosely-interpreted IRS rules, it can spend millions
influencing voters or attacking candidates while insulating their donors from the public scrutinythat is now focused on SuperPAC donors. That is one of their perverse selling points.

140
Sunshine versus the Lure of Dark Money. Today's hearing shines a light on some of the big
names who are openly spending money on Super PACs to help the candidate and agenda theywant to win. Some of these billionaires or millionaires have long been public supporters of aparticular political party or candidate. Notably, at least part of their spending in elections occurs
in the light of day, although many people are rightly distressed by the influence of this money.
Though they may be vilified for trying to buy this election, some may be motivated to try to
prevent the "other side" from buying the election and so attempting to fight fire with fire, as
comedians Bill Maher and Stephen Colbert have suggested. Some may be quiet philanthropists
who want to help make the world a better place. Others want to remake it in their own image andgreedily grab more wealth through controlling the levers of power to privatize (profit-ize) andkill programs they ideologically hate, like Social Security or Medicare that they will never need.
Some "Super Donors" may relish the aura and reality of power that making such big political
donations brings them among friends, colleagues, campaign workers, and others. The brands
their wealth is associated with may be sufficiently enormous or popular or long gone that there islittle risk of significant consumer reaction to their political agenda and much to gain ifthe horse
they are betting on in the election wins the race. (Or they may believe they have much to lose iffor example a candidate wins who believes that regulating their industry is in the public interest.)
Long before there were Super PACs, many were already politically influential or were big-time"bundlers" whose connections or glamorous parties could generate many checks for campaigns.
In addition to the desire to shape public policy, such contributions can have socially competitiveelements, a keeping-up-with-the-Jones' or an arms-race approach. Yet, there may still be someupper limit or outlier amount where such donations would provoke widespread public revulsion.
"Fortunately" for Super Donors and corporations that want to spend money secretly, nonprofit
groups like Karl Rove's Crossroads GPS come to the rescue. Although their financial gifts tosuch groups are hidden from the rest of us, they need not fear their political beneficiaries won't
know who's who. Informally, they can make sure everyone "who counts" will know them.
Efforts to address this have been thwarted. In sum, under provisions of Bipartisan Campaign
Reform Act (BCRA, known as McCain-Feingold) that were not struck down in the Citizens
United case, Congress sought to shed light on sham issue ads that were really "electioneeringcommunications" by requiring that "all contributors who contributed" to the group running theads be disclosed - ifthe donor gives $1,000 or more and the group spends more than $10,000.
But a group called "Wisconsin Right to Life" -- an instrument of James Bopp's agenda -- got the
U.S. Supreme Court to strike BCRA's bar on corporations and unions spending from theirgeneral treasuries on electioneering communications if the ads did not contain the magic wordsof express advocacy or their "virtual equivalent," whatever that is. The FEC then decided donors
only had to be disclosed if they intended the money be used in that way, although Congress
avoided such a loophole. Rep. Chris Van Hol1en chal1enged the FEC and won in district court.
Requiring disclosure only of those donors who say they are giving "for the purpose of furthering
an independent expenditure" has resulted in more money being spent by nonprofit groups and adiminishing percent of donors disclosed. The rules operate like a "Don't Ask/Don't Tel1" policy
to keep the public in the dark. Meanwhile Senator McConnell is trying to use the First
Amendment like a sword to prevent any disclosure, claiming disclosure chills speech (money).

141
Nonprofits Are Now the "Swiss Bank Accounts" of Spending on Ads to Influence Elections.
Perhaps one of the grand ironies of the current partisan divide is that the same party that isdemanding in many states that voters prove their identity to vote is fighting tooth and nail toprevent the disclosure of the identity of donors to special interest groups running ads to influencevoters. The proponents of new restrictive laws to make it harder for Americans to vote havefilled the airwaves with baseless claims of "voter fraud" to impose new identification restrictions-- that track the model bill of the American Legislative Exchange Council that has been outed by
ALECexposed.org -- but they (like ALEC) simultaneously seek to keep the identity of donors tospecial interest groups influencing the elections and thereby public policy hidden from view.
Unlike for direct contributions to candidates, there are no bars on foreign national or foreign
corporations contributing to nonprofit groups that are not PACs. There are also no limits on how
much money can be given, as with Super PACs but without disclosure of donors, big or small.
N onprofits really are becoming the Swiss bank accounts of spending to influence elections.
With nonprofit spending on ads, the donors are kept secret from the American people, basicallyforever. And, the spending is not counted in mandatory reports to the FEC that were designed tokeep the press and public more aware of who is behind such advertising. Instead, nonprofit
groups file an annual form with the IRS, usually months after an election is over, thatsummarizes their revenue and spending (often described as "educational" activities). The forms
provide no details about what kind of ads were purchased, where they ran, or what they said.
The Federal Communications Commission, with three commissioners and a current Democratic
majority, recently required TV stations -- in the 50 biggest media markets affiliated with the four
major commercial broadcast networks (NBC, ABC, CBS, and FOX) -- to post information about
political ads that are purchased. The rule - more than a decade in the making -- leaves out many
cities (for example, all of Wisconsin except Milwaukee) and some whole states (such as Maine,
Vermont, and New Hampshire) as well as major broadcast outlets like Univision. But it is a stepin the right direction and an important interim measure while comprehensive reforms are pushed.
Meanwhile, Politico recently reported that Karl Rove's Crossroads operations (the PAC called"American Crossroads" and the nonprofit called "Crossroads GPS") plan to spend about$300,000,000 in the 2012 elections -- in combination with about $400,000,000 from entities
connected with the Koch Brothers and another couple hundred million, for a grand total of one
billion dollars. Only small part of Rove' s part of this spending and donors will be disclosed,
through the American Crossroads PAC, whose funders have been almost exclusively billionaires
and corporations. Crossroads GPS is not registered as a PAC and is instead a 501 (c)(4) nonprofit.
Just doing the math, Rove's PAC received nearly $6 million in funds last month and had $31.5
million in the bank. That leaves a couple hundred million of his $300 million spending pledge
unaccounted for. Under current law, the public will not know the revenue of his nonprofit,
Crossroads GPS, until mid-2013, and even then the American people will not know the identitiesof the corporations or individuals that bankrolled it, unless something dramatically changes.
Rove's public PAC and his dark money operations are enormously powerful and troubling. The
IRS has reportedly begun scrutinizing such nonprofits and the New York Attorney General has
opened an investigation about how much of his nonprofit's work is genuinely for the benefit of
the general public as required by its tax exemption, versus for narrow or partisan gain. With only
about 100 days before the election, neither of these will be resolved before that money is spent.

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Conclusion. As case studies of nonprofit spending detailed in the appendix show, there aremany types of groups besides candidates and SuperPACs whose spending influences elections.
Some such groups fully comply with weak existing laws; some appear to exploit the lack ofdisclosure required about the corporations or individuals that are bankrolling their operations or
their spending on ads. Some obscure even basic address information about who or what thegroup really is. In this Wild West environment, and with the impediments to enforcement of thecurrent rules, it appears to be extremely easy for a nonprofit group to basically launder money toinfluence elections that a corporation or individual does not want connected to themselves.
There is no limit on the receipt of money from foreign corporations or individuals that is spent
on such ads by 501 (c)(3), (4), and (6) organizations. Despite misleading assertions that the Court
has leveled the playing field between corporations and unions, the most closely regulated entities
appear to be the (c)(5) unions, which constitute the only one of these major 501(c) categories thatdefinitively represents an association of individual Americans and that is not a corporate-funded
front group or fronting for some other hidden interests. They are also required to report theiroverall political spending to the Department of Labor in a way no other nonprofit category is.
That's why we know so much more about their spending in elections than other entities, whichleads to many distortions in reporting on election spending since groups like Americans for
Prosperity and Crossroads GPS are not counted. The other groups involved in elections, whether
their listed name is "Citizens" or "Americans" "Coalition" "League" or some other such
identifier, unlike unions, might have very few donors or members and their financial backers
could be a mere handful of extremely wealthy individuals or closely held corporations.
In the current environment, this information is hidden from public view unless the group files as
a PAC or independent expenditure group. Moreover, the definitions of an "independent
expenditure" and the amount of political activity that would disqualify a 501(c) from taxexemption need real clarification to drive as much fundraising and spending that influences
elections into the sunshine and out of the darkness.
But, to be quite blunt, increased disclosure -- although very important -- is simply not enough.
As an organization that investigates front groups and the activities of shadowy nonprofits, theCenter for Media and Democracy can attest that even full disclosure to the government of thereal identities of the top few funders may not alert the audience to the financial or other interests
behind such ads. And, as the CAVA example in the index shows, the funder disclosed may justbe another unknown or secretive entity.
And, then you have the situation demonstrated by the SuperPACs themselves. People can learn
who funds them but depending on the effectiveness of the ad, an audience provided with thenames of the main funders may not know who they are or have time or capacity to look further.
In some, the activist judges, abetted by partisan politicians, who have changed the law to turn ourelections into a "marketplace of ideas" have actually transformed it into just a marketplace. Inthat marketplace, voters are sold goods they cannot return (un-elect) for years at a time by groups
whose financial interests or ideological agenda is secret and with no accountability for whether
the ads are truthful or deeply misleading. A candidate's "independent" allies can run attack ads
they can disavow if the ads go too far and they usually do know who the major group donors are.

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Meanwhile, elected officials can be threatened by corporations or their front groups with thepotential that they will be subject to potentially overwhelming (and indeed unlimited) spending if
they vote the wrong way. That has certainly been one of the ways the NRA has wielded its
financial heft even before Citizens United. The NRA does not always have to spend in eachelection to win its results; through its financial reserves it has Cold War-style deterrence powers.
And beyond all this, there is simply no rational denying that extraordinarily wealthy corporations
and individuals now have more potential power over who wins elections than at almost any timein a century, since dating back to the era of the "robber barons." The system really is broken.
Given the short-time before the election and the political reality in Congress, there appears to be
no time or power to do anything legislatively in response to the coming tsunami of ads. In someways, the question is what happens next, after the first post-Citizens United presidential election.
Numerous public interest groups - such as Public Citizen, People for the American Way, Moveto Amend, Free Speech for People, Common Cause, and the Center for Media and Democracy,
several major labor unions, and other organizations, plus socially responsible businesses andseveral state officials - are on record calling for Citizens United and related decisions to be
overturned. 2 We know the laws must be changed to restore the proper role f Citizens (notunelectedjudges) in setting rules for our elections and the role of corporations in our democracy.
The movement that is being built in cities, counties, and states across the country to reject what
Citizens United has come to symbolize grows stronger by the day. It will grow stronger still as
Rove and his allies unleash their funds in this election, come what may on election day. The
people know something's got to give. They know the laws must change because too many
politicians are already too captured by the status quo of how they themselves must raise money
to fund their elections and retention in office. We know that many laws must be changed torestore the proper place of We the People in our democracy: the Constitution and election,communications, corporation, and tax laws. It may seem daunting, but what is the alternative?
Z Here is the full list of endorsers of the statement of principles of the united4thepeople.org constellation of groups: 350.org. The
Berkshire Environmental Action Team, California Church Impact, Campaign for America's Future, Campus Progress, Center for
Biological Diversity, Center for Corporate Policy, Center for Environmental Health, Center for Health, Environment Justice,
Center for Media and Democracy, Center for Science in the Public Interest, CivicSponsor, Clean Water Action, Clean Water
Network, Coalition ofImmokalee Workers, Code Pink, Coffee Party USA, Common Cause. Communications Workers ofAmerica, Consumer Action. Consumer Watchdog, CREDO Action, Corporate Accountability International, Democrats.com,
Democracy Unlimited, Demos, Drinking Liberally. Des Moines Chapter, Eanhworks, Earth Day Network1 EnviroJustice,
Ethical Markets, Food and Water Watch, Food Empowerment Project, Franciscan Action, Free Speech for People, Friends of the
Earth, Generation Waking Up, Get the Dough Out, Global Alliance for Incinerator Alternatives (GAIA), Global Community
Monitor, Grassroots Recycling Network, Greenpeace, Hip Hop Caucus, Indiana Alliance for Democracy. Institute for Agriculture
and Trade Policy. Institute for Policy Studies Global Economy Project, International Forum on Globalization, International Labor
Rights Forum, Liberty Tree Foundation for the Democratic Revolution, Main Street Alliance. Maryknoll Office for Global
Concerns, Money Out of Politics, MoveOn,org. Move to Amend, National Alliance of Latin American and Caribbean
Communities, National Congress of Black Women, National Council of Jewish Women, National Council of Women's
Organizations, National Education Association, National Women's Health Network, The New Bottom Line. New Progressive
Alliance, Oil Change International, OMB Watch. The Other 98%, Panchamama Alliance, Pax Christi USA, People for theAmerican Way, Pesticide Action Network North America, Physicians For A National Health Program, Program on Corporations
Law & Democracy, Progressive Democrats of America, Public Campaign, Public Citizen, Rainbow-PUSH Coalition,
Rainforest Action Network, Rebuild the Dream, Renew Democracy, Responsible Wealth Project, RootsAction, Sacramento for
Democracy, Sea Turtle Restoration Project, Service Employees International Union, Sierra Club, SisterSong Women of Color
Reproductive Justice Collective, Story of Stuff, Sum of Us, The American Institute for Progressive Democracy, The New Bottom
Line, The Other 98%, The Pachamama Alliance, UAW, Unitarian Universalist Association of Congregations, United for a Fair
Economy, United Republic, U.S. PIRG, U.S, Youth for Sustainable Development, Veterans for Peace, VPIRG, We the People
Campaign, Where's Our Money, Wisconsin Democracy Campaign, Wisconsin Wave, A project of the Libeny Tree Foundation,
W01f-PAC. Working Families Party, Working Families Win. and the World Constitution and Parliament Association.

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As this conversation moves forward in the months ahead, we must be clear about what proposedsolutions might fix which identified problems, such as those identified by in our case studies andother investigative reporting. We must be mindful of both intended and unintended
consequences of constitutional amendments to solve the vexing problems that are undermining
the integrity of our elections and even what it means to be represented in this democracy.
To help work through these issues, Greg Colvin, who is a partner at the law firm of Adler &Colvin, who has studied and counseled on nonprofit political tax law issues for many years, hasdevised twelve questions he recommends that drafters and reformers answer, in addition toensuring that the language of any amendment is as brief and clear as it can be:
Twelve Questions for Drafting a Constitutional Amendment on Citizens United & Beyond:
1. What is the main purpose? Is it to drive the big money, from all sources, out of elections?
Or is it to abolish corporate personhood?
2. If none of the rights extended to corporations are still protected by the Constitution, what
would the consequences be -- outside of the realm of elections?
3. What would happen the day after the amendment was adopted? Would corporate andbusiness spending in elections stop or would legislation and litigation be required?
4. What kinds of legal entities does the amendment apply to?
a. business corporations
b. nonprofit corporations
c. labor unions
d. other forms of organization (associations, trusts, LLCs, partnerships)
e. all of the above
5. How should the campaign spending of individuals (including candidates) be regulated?
a. no limits on personal spending
b. authorize Congress and the states to set limitsc. set dollar limits in the Constitution
d. prohibit completely
6. Should all campaign contributions and expenditures be publicly disclosed? Or should
Congress and the states allow small donations to be anonymous? In view of all that secretmoney that flows through nonprofit groups for political "issue ads," how do we force
them to disclose their sources?
7. Should public financing of campaigns be required, permitted, or prohibited?

8. Does the amendment cover both candidate elections and public votes on ballot measures?
9. Are all levels ofgovemment covered: federal, state, city, town, and county?
10. Is any special wording needed to protect freedom of the press?
11. Should other subj ects be covered in the amendment, such as making election day aholiday, shortening the campaign season, simplifying voter registration, requiring paper
ballots, addressing voter disenfranchisement?
12. Should there be two or more amendments on different issues, or one unified proposal?
We believe these important questions need to answered as part of any amendment strategy. In
the view of the Center for Media and Democracy, the Supreme Court decision in Citizens Unitedmust be overturned because it allows the voices of real people to be drowned out by
ventriloquists who throw their "voices" through money. The Court claims our democratic charter
commands that we allow untrammelled amplification of those who have the money to fund thepurchase of commercial TV ads over the rest of us who don't. We the People know it does not.

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Beyond Super PACs
Appendix to the Testimony of the Center for Media and Democracy
July 22, 2012
Case Studies ofNonprojit Spending that Influellces Electiolls. The Center for Media and Democracy
has been working to expose corporate front groups for almost twenty years. Although Congress has
previously passed measures to address some of the most egregious ways money and virtually anonymous
attack ads are undermining the integrity of American elections (as with the 527 rules adopted in the
middle of the 200 campaign and BCRA in 2002), some Senators have thwarted much needed disclosure.
[n this climate, it should come as no surprise that groups that do not report their donors or their ad
spending have flourished. Some of the groups, like the U.S. Chamber of Commerce and its Institute forLegal Reform, have been around for years and have been increasingly involved in activities that ordinary
citizens perceive as political or electoral. Other groups have popped more recently, with little information
about who they really represent, let alone who funds them.
Many groups running ads to inl1uenee elections are operating outside of the PAC rules as 501(e)(3), (4),(5), and (6) organizations. Concerns about them need to be part ofthe discussion of the problem and thesearch for solutions. The case studies below focus first on the most recent major post-Citizens United
election (in Wisconsin) and on the dark money spent in the Iowa presidential primary.

David Koch's Americans for Prosperity (AFP) reportedly spent $10 million on
Wisconsin's election that was held last month in which a million citizens
petitioned to recall controversial Governor Scott Walker but fell short on election
day. It spent more than Walker's opponent, Tom Barrett, raised or spent, but it
did not register with the state elections board, did not disclose who besides Koch
was funding its operations, and did not report how it spent the $10 million it
bragged about spending.
AFP's activities provide a snapshot of the group's likely operations in thepresidential race and other elections as part of the $400 million David Koch andhis brother Charles have reportedly pledged as part of the billion dollar club Roveis helping in order win the White House and Congress.
In the weeks before the election, the director of AFP's Wisconsin arm, Luke
Hilgemann, told reporters AFP's ads, bus tours, rallies, and mobile phone banks
it claim:; thn. )Sl1't about
had nothing to do with the elections: "We're not dealing with any candidates,
political parties or ongoing races." One the thousands of door hangers distributedby AFP is photographed above and plainly contradicts AFP's claims. Hilgemann also said "We're justeducating folks on the importance of the reforms" of Walker -- which AFP previously backed with a"Stand with Walker" ad and sign blitz in 2011 when protests ofthe governor's reforms rocked the state.
Desplt~ what AFP matertdh

The APP Foundation is a "charity" registered under Section 501(e)(3) of the Internal Revenue Code. It
spent at least $3 million on television ads that looked like clear appeals to re-elect Governor Walker. The

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ads touted the alleged benefits of Walker's controversial changes to state law and reinforced similar
themes of ads by the candidate. The AFP Foundation also organized a series of meetings across the state
to "educate" voters on the importance of Walker's reforms. The ads and meetings were produced incollaboration with the Wisconsin-based MacIver Institute, whieh is also organized under Section
501(c)(3) of the Code.
As 50l(c)(3)s, both the AFP Foundation and MacIver Institute are prohibited fTOm intervening in political
campaigns. This absolute prohibition on 50l(c)(3) electoral activity has been justified because corporate
or individual donations to groups like these can bc written-off as tax-deductible charitable deductions.
The policy and legal judgment is that Amcrican taxpayers should not forego tax revenue so a corporation
or individual can influence elections in other words, taxpayers should not be forced to subsidize a
cOlporation's or person's political activity.
AFP organized rallies, canvassing, phone banks, and bus tours to promote Walker's reelection. Starting aweek beforc the election, the group kicked-off the "A Better Wisconsin Bus Tour" and visited ten
Wisconsin cities before concluding the tour three days before the election in Racine, where Walker's raceand that of a state senator were particularly close. AFP's Illinois arm bused-in out-of-state residents tomeet up with the rally and canvass Racine neighborhoods to "make our voices heard in support of the
Wisconsin refomls." Attendees were charged only $5 for a round-trip bus ticket with lunch and dinnerprovided. (By comparison, a round-trip commercial bus ticket from Racine to Chicago would cost $47,
lunch, dinner, and politics not included.)
AFP also hoasted that it flew-in 70 paid staff members for the effort, and recruited students and others tocall voters on AFP-provided cell phones (dubbed "Freedom Phones") and to canvass neighborhoods.
Other AFP arms across the country organized "phone banks for patriots" to make phone calls to tellWisconsin residents to "support the Wisconsin reforms" before the clcetion. All these supposedly nonelectoral activities stopped once Walker won the race.
AFP does have a (c)(4) wing which can engage in a limited amount of "independent expenditures," in theaftermath ohhe Citizens United decision, but based on Hilgemann's repeated denials that AFP was doingso, it is not clear if AFP aetnally classified the expenses fbr the canvassers, bus tours, and phone banks
under the 501(c)(3), which gives a tax write-offto donors, or its 501(e)(4). What is clear is that it
disclosed no independent or electioneering expenditures to the state, even though David Koch's righthand man who manages AFP's daily activities, Tim Phillips, told CNN the group spent a total of$10
million supporting Walker in Wisconsin. A FP refused to disclose its donors or report expenditures.

The UPS Siore

In addition to tracking AFP in Wisconsin and other states, the Center

for Media and Democracy also identitled another group spending to
influence an election in the state that was linked to AFP staff.

That group, called "Citizens for a Strong America" (CSA), spentover $200,000 on ads in Wisconsin's Supreme Court race, but as theCenter for Media and Democracy documented, its address of"834 Park Avenue #306" in Beaver Dam,
Wisconsin, was nothing more than a drop box at a UPS Store. CSA ran attack ads about Jomme
Kloppenburg in her race against David Prosscr, ajudge and former Republican state legislator.
When the ads were run, CSA listed no information about its leaders, employees, or funders on its website,
citizensforastrongamerica.net. Its contact infonnation was a free Googlemail account:eitizensforastrollgamerica@gmaiLcom. Its website name was purchased by John W. Connors of
Milwaukee, whose job at Koch's Americans for Prosperity was described as grassroots campaigns andmarketing (his work email address routed to @afphq.org). CSA's website's domain registratiolliisted
Connors's own gmail account as the contact and the business address for the domain was 1126 S 70thStreel, Suite S420, in Milwaukee, which is in the same building as AFP's Wisconsin arm, but a different

147
room number. There is no evidence that AFP orchestrated the group's operations. Connors, whose fulltime job is with AFP, is the part-time "president" of CSA, operating in the same building.
But the plot thickens. CSA's address was the same as for another group named "Campaign Now." Thatgroup's web address was also registered to Connors. And Campaign Now used the same telephone
number that AFP's Wisconsin arm used to register people for buses to support Walker. And yet anothergroup, Watchdog.org, which is associated with the "Franklin Center for Government and Public Integrity"
was also registered by Connors, who previously worked for Walker and also was listed as AFP's"Students for Prosperity Director." The Franklin Center is funding state-based "news" outlets that echo
the Koch agenda and ideology. Its funders are not disclosed.
Connors has helped coordinate AFP's tea party summits in the state and also helped launch AFP's new"home headquarters kit," an update on AFP's "pyramid-type campaign" that was used by operative MarkBlock and then-candidate George W. Bush in Wisconsin to identify voters and get them out to vote for his
run for president in 2000.
At the time the ads were run in the Kloppenburg-Prosser race, it was very difficult for the press andcitizens to find out who was behind hundreds of thousands reportedly being spent in ads during theelection, although they were traced back to UPS mailbox and a staffer for AFP.
Several months after Prosser won the election, CSA filed its annual 990 as a 501(c)(4) organization forthe year before these ads were purchased. Although CSA's expensive attack ads about Kloppenburg
focused on a farming case it criticized her for and also falsely claimed she had attacked her opponent for
not prosecuting a child molesting priest, CSA told the IRS its charitable mission was "to promote andconduct research on public policies that reduce tax burdens on families, increase public safety, and protect
the rights of parents to make decisions about their children's medical, psychological, and educational
well-being." In 2010, CSA did give over $179,000 of its $378,000 in revenue to the group "Wisconsin
Right to Life" (which has been litigating against federal and state election disclosure rules) and it gaveover $50,000 to a group called "Wisconsin Family Action."
To date, there is no public information about who funded CSA in 2011 and who underwrote its ads in thestate Supreme Court election. Due to the gap in time between CSA's activities last year and IRS filingdeadlines, even the general revenue and expenses of the group for that year are not known. Since CSA
ran ads in the Supreme Court race, its website has had no changes for over a year.
In the current regulatory environment, there is almost nothing to prevent a nonprofit group like this frombeing created and used to hide the identity of donors funding ads to influence elections. What little
disclosure there is comes long after the election results are in, and unless watchdog groups are keeping aclose eye on such groups, the IRS may never discover the dissonance between the stated mission forwhich the group received its nonprofit status and its actual activities.
Moreover, under the disarray caused by Citizens United in creating a permissive environment for all sortsof shadowy nonprofit groups to run such attack ads, CSA is merely one example of groups operating out
of mail drop boxes. CSA does not disclose its donors or ad expenditures.
Coalition for American Values
Another group that ran ads before the Wisconsin recall earlier this year
was the "Coalition for American Values Action" (CAVA). Last year,
CAVA registered as a corporation in Wisconsin under new rules
requiring the registration of corporations making independent
Wrlea rev1£lW
expenditures here. CA VA's state registration lists its address as 6650
W. State Street, Suite 271, in Wauwatosa on the edge of Milwaukee. It
is the address of a UPS Store with mailboxes. CAVA disclosed one other business address to the state.
The UPS Store more info

0050 West Slate SIn!et
WsuwalDaa, Wl5J21 J(414) 251H9570
tt'leupssto"l3!ccal.com

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The name of CAVA's treasurer -- whose address is also listed at the UPS Store -- is Brent Downs. He is
also listed as the treasurer a federal PAC linked to CAVA. (He was previously the contact person for the
Marquette Chapter of Students for Prosperity, which is the student arm of Koch's Americans for
Prosperity, and its address then was listed as the home of AFP's John W. Connors, mentioned above.)In the PAC's Federal Election Commission filings from June for the prior month, it reported having spent
only $78.63, raising only $4,265, and having $16,588 on hand at the end of May.
However, in Wisconsin, CAVA reported spending $400,080 on ads supporting Scott Walker's reelection
during that same period. CAVA reported that all the funds for these ads came from itself in two
donations, and made expenditures in the same amounts and on the same days: CAVA reported receiving$385,300 on May 24 and spending $385,300 on May 24 (on "Media-Videos"), and receiving andspending $14,780 on May 30 (on "Media-TV").
The real source of these funds, though, remains secret. The individuals or organizations that gave money
to CAVA was not disclosed to any state or federal authority, and the people of Wisconsin are left in thedark about who is really behind these ads.
CAVA told the FEC its address is 119 S Emerson St #231 in Mt Prospect, IL. This is also the address
given for CAVA's attorney, James Skyles, in its Wisconsin registration. Skyles is the Director ofOperations for the Franklin Center for Government and Public Integrity (which John W. Connors helpedin the launch of its Watchdog.org site.) During the recall election, the Franklin Center's Wisconsin
operation, the "Wisconsin Reporter," advanced a pro-Walker, anti-union message in its reports.
Further investigation revealed that although CAVA told Wisconsin's elections board that it was also
located in Illinois, it is apparently incorporated in Virginia. It incorporated on November 21, 2011,just as
circulators in Wisconsin began collecting signatures to trigger the recall of Governor Walker. In Virginia,
its registered agent is Matthew Muggerridge, who is also a staff attorney at the anti-union National Right
to Work Foundation.
CAVA's ads flooded the airwaves in the fmal weeks before the election and attracted significant attention
by making a unique appeal -- instead of promoting Walker or attacking his opponent, the ads attacked thepremise of the recall itself. The ads depict individuals saying they didn't vote for Walker in 2010, yet will
vote for him in 2012 because they oppose the recall.
Spending $400,000 in the Wisconsin media market, over a period of just two weeks, amounted to a lot ofads. These ads, coupled with similar messaging from Governor Walker, proved effective. Exit polls on
June 5 showed that sixty percent of voters thought recalls were only appropriate for cases of official
misconduct and ten percent thought recall elections should never be held. In contrast, a St. Norbert
CollegetWisconsin Public Radio poll of voters conducted in November 2011,just as the recall was
launched and CAV was created, asked if voters supported using the recall to remove Walker from office.
Fifty-eight percent of those surveyed said "yes" and 38 percent rejected the use of the recall to remove thegovernor. The secretly funded ads appear to have made a difference in the outcome ofthe election.
Wisconsin voters never knew who was really behind the ads, or that the ads, which talked about recall not
being "the Wisconsin way," was funded by secretive out-of-state group. Without knowing who is reallybehind these ads, voters cannot know whether future legislative or governmental activity favors thefunders. Whoever donated over $400,000 to CAVA to influence the recall election may have viewed theircontributions as an investment, and accordingly, could communicate their identity to the politician who
benefitted from that investment. If the public does not know who is funding these ads, it cannot holdelected officials accountable if they provide their benefactors a return on their investment that is
untraceable. CAVA's income sources are secret.

The Iowa Presidential Primary Spending bv Nonprofit Groups

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In the Iowa presidential primary, an array of nonprofit groups organized under Section SOl (c) of the tax
code spent millions influencing the outcome of that state's primary and influencing the issues discussed in
the primary. None of these groups disclosed their funding or spending.
Although none of the groups active in the Iowa primaries were very transparent about their funding andspending, some information about their activities was available through a review of television ad buys in
the Des Moines and Cedar Rapids media markets. Compiling that data involved a site named"IowaPolitics" actually going to the four network TV stations in those markets and physically picking up
the records, which helped provide some data for this snapshot ofSOI(c) activity in this crucial primary.
Crossroads GPS
Karl Rove's Crossroads GPS (CGPS) is a SOI(c)(4) that spent $310,000 on ads in Des Moines and Cedar
Rapids between June 28 and December 27,20 II. CGPS ran three so-called "issue" ads in summer of
20 II attacking President Obama, and two ads starting in October 20 II attacking both Obama andconservative Democrat Rep. Leonard Boswell for supposedly being too supportive of Obama. CGPS ran
another ad in December attacking Obama about Solyndra.
Although this is a drop in the bucket compared with CGPS' anticipated spending in the general election,
it spent more than any other non-candidate group. And, as noted earlier, its donors are not disclosed. So,for example, it is not known whether the ads attacking the President on solar energy are funded in part bycorporations or CEOs with a financial interest in competition with solar energy, such as oil and gas
companies that have long opposed federal investments in solar energy while zealously defending theirown tax subsidies. CGPS does not disclose its donors and did not disclose these expenditures.
Citizens United"Citizens United" is a SOl (c)(4) that spent hundreds of thousands in Iowa in the run-up to the primary. Itspresident David Bossie is reportedly a friend of then-candidate Newt Gingrich.
According to ad buy records, Citizens United spent $29,600 in Des Moines and Cedar Rapids on ads thatran between July 2S and July 30. The group reportedly had spent a total of$75,000 on anti-Obama TV
ads, as of December 2. The group also ran :30 ads in late December featuring Newt Gingrich andpromoting a 2009 Ronald Reagan documentary Gingrich had produced. The ad does not mention theelection or Gingrich's candidacy. In the ad, Gingrich says, "[Reagan's] rendezvous with destiny is areminder that we all have a similar rendezvous, and that together, we can create a better future for
America." According to Politico, the ad reportedly cost $2S0,000.
It also promoted its latest movie, "The Gift of Life," which reportedly spurred then-candidate Rick Perryto announce that he was changing his position to oppose the option of abortion if a woman becomes
pregnant from rape or incest. (Citizens United's prior election·time movies focused on candidates. like
Hilary Clinton.) Citizens United's donors and its total expenditures in Iowa are secret.
Strong America Now"Strong America Now" (SAN) is a 501 (c)(4) organization that claims not to support any particular
candidate and is focused on advocating that government adopt a particular approach to cutting waste.
However, in November 2011 the group's founder created a Super PAC with the same name to support
Gingrich's candidacy.
During the Ames straw poll in August, SAN bussed people to the straw polls and held parties, spending$60,000 to buy tent space and the names of previous caucus-goers and straw poll voters. The group dien
sent 75,000 candidate "report cards" in December 2011 rating candidates and mailed caucus videos tolikely caucus-goers. SAN also spent around $73,400 in the Des Moines and Cedar Rapids markets for 190
ads it ran between February and June 2011. These ads did not name President Obama or any of the
Republican candidates were called "Our Debt & Our Future and promoted its cutting government waste.
The SAN (c)(4) does not disclose its donors and did not report its spending to influence the primary.

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American Petroleum Institute
The American Petroleum Institute (API) is a 50l(c)(6) trade association funded by oil and gas interests.
Like nonprofit groups organized under Section 501 (c)(3) and (c)(4) of the tax code, it is not required todisclose its funding or spending. Unlike a (c)(3), however, donations to it are not tax-deductible.
API did not endorse any candidate in the Iowa primary or any other primary state, but it did invest
significant amounts of money to influence opinion about oil and gas interests, which is a precursor towhat is likely to be heavy advertising in the general election for the White House. For example, API
commissioned a poll in November purporting to show Iowa voters want domestic energy development. It
commissioned another poll in March claiming Iowa voters oppose new oil and natural gas taxes.
API also formed the "Iowa Energy Forum," a corporate front group, some time before June, whichaccording to Think Progress and the Des Moines Register, planted people in Iowa forums and candidate
events to ask questions to candidates about domestic energy production. The IEF sponsored lectures at
Iowa State University with API chief economist John Felty, who claimed that gas companies don't get oil
subsidies (which was rebutted by the Iowa Renewable Fuels Association). Their lecture in May wasattended by Gov. Terry Branstad. API/IEF also sponsored a lecture in November with API's John Felty
called "Energizing America: Facts for Addressing Energy Policy."
Another API front group "Energy Citizens," which appears to be a 501(c)(4) nonprofit, also sent staffers
to the Ames straw poll and provided an air-conditioned tent with music, food and entertainment, andprovided free bus rides and free tickets to the straw poll.
According to ad data, API spent around $93,000 on ads in Des Moine and Cedar Rapids between Marchand October 2011. It is not known whether they ran more ads after October. The group also gave
$100,000 directly to the Iowa Republican Party. Although it is possible to discover which corporations
are affiliated with API, it does not affirmatively disclose its member corporations or the amounts
they generally provide.
Coalition for American Jobs
Like API, the Coalition for American Jobs (CAJ) is a 50 I (c)(6) trade association, but it is not specificabout what industries it represents. According to the group's website, it "represent(s) Americanbusinesses, industries and others concerned about the impact of potential EPA action onjob creation."
CAJ is reportedly supported by chemical and oil lobbies.
Like API, CAJ appeared focused on shifting the terms of the debate rather than supporting any particular
primary candidate. For example, CAJ spent $56,650 on a :30 tv ad that ran near the Ames straw poll in
mid-August on several stations in Des Moines, Cedar Rapids, and Waterloo. "In a rush to regulate, theEPA wants to impose unnecessary ozone rules - government regulations that will cost business up to $90
billion a year and threaten manUfacturing and construction jobs in nearly every county in the country. Call
today, and tell President Obama America needs jobs, not more government regulation," over an on-screen
phone number. Other reports say CAJ spent around $75,000 on ads in Iowa. CAJ does not disclose its
donors and did not disclosure its ad expenditures.
The U.S. Chamber of Commerce
The country's most politically active 501(c)(6) trade association, the U.S. Chamber of Commerce, spent$59,700 on 121 TV ads that ran between late September and late November. One ad touts Rep. Tom
Latham's stance against President Obama's policies of "bigger government and higher taxes." Viewers are
told to call Tom Latham and "tell him to keep fighting for Iowa jobs." It is anticipated that the
Chamber will spend millions more in this year's general election and it does report some of its
election spending to the FEe.

Coalition to Protect Patient's Rights

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The Coalition to Protect Patient's Rights (CPPR) is a 50 I (c)(4) nonprofit fonned in 2009 to oppose
federal health care refonn. It is managed by the infamous astroturf lobbying finn DCI Group. Exactly
which healthcare, insurance, or phannaceutical interests fund it are unknown.
The group spent $10,650 on ads that ran between August 16 and August 22 in Cedar Rapids andWaterloo. The ads say: "After cutting $500 billion from Medicare, the president's health care law createda new board of IS unelected bureaucrats. Unaccountable --like a Medicare IRS, with the power to cut
payments to doctors, and deny seniors care to pay for more wasteful Washington spending. Tell
Washington: bureaucrats shouldn't have the power to deny seniors care" with a phone number on-screen.
This was part of a reported seven-figure national ad buy. CPPR does not disclose its donors or report
expenditures on ads like these.
Know Your CarelProtect Your Care
Know Your Care (KYC) is a 50J(c)(3) and Protect Your Care (PYC) is a 50J(c)(4), which are is a prohealth refonn group that was also active in Iowa. KYC ran :30 ads called "Bagel" in mid-August, aroundthe time of the Ames straw poll and GOP debates, touting the benefits of President Obama's health careplan. Politico reported that the ad cost five-figures to run in the Des Moines market, but the IowaPolitics
analysis of ad buys found only $16,636. The ad was reportedly accompanied by "saturation" level online
ads in Des Moines and Ames. PYC reportedly had staffers on-the-ground in Iowa in advance of theAmes straw poll, and distributed a memo highlighting each ofthe GOP candidates' position on health care(and particularly the individual mandate). KYC/PYC do not disclose their donors or report ad
expenditures.
Partnership to Protect Medicare
The 501(c)(4) Partnership to Protect Medicare (PPM) claims to fight purported cuts to Medicare, and ran
a :30 tv ad asserting that "some in Congress want to corne between seniors and their doctor, with morecuts to Medicare Part B" and asking viewers to call Rep. Torn Latham (R) and "thank him for protecting
seniors at their greatest time of need." PPM spent $42,440 on 67 ads in Iowa between Nov 5 andNovember 18. The Iowa ads were part of a multi-million dollar ad buy thanking several Members ofCongress for opposing cuts to Medicare Part B. PPC does not disclose its donors or report its ad
expenditures.

152

...~
-cOMMON cAUSE
Common Cause Testimony to the
Subcommittee on The Constitution, Civil Rights and Human Rights of theUnited States Senate Committee on the judiciary Hearing

Taking Back Our Democracy: Responding to Citizens United and the Rise ofSuper PA Cs
July 24,2012
Submitted by Bob Edgar
President and Chief Executive Officer
Common Cause
Common Cause is a national nonpartisan advocacy organization founded in 1970 by John
Gardner as a vehicle for ordinary citizens to make their voices heard in the political process. On
behalf of our 400,000 members and supporters, we appreciate the opportunity to submit thistestimony to this Subcommittee about the proliferation of Super PACs and the call for an
Amendment to the Constitution to restore the voices of average, ordinary Americans in ourelections once and for all.
Mr. Chairman, Super PACs have transformed our elections into the sport of kings.
Billionaires and corporations are pooling unlimited sums of money into joint accounts, pledging
astronomical sums in support of or opposition to candidates, and recklessly drowning out thevoices of the American people. These corporations and mega donors are motivated by an
expectation of influence and access, often at the expense of the public interest. We cannot afford
to auction off our vibrant democracy to the highest bidder.

The Problem ofSuper PACs
Independent expenditure-only political committees, so-called Super PACs, are thebyproduct of two federal court decisions. In the first case, Citizens United v. FEC, the UnitedStates Supreme Court ruled by fiat that corporations enjoy a constitutional right to spend an
unlimited amount of their general treasury funds influencing our elections. I Overturning a
century of law with the stroke of a pen, the five-Justice majority reasoned - without citing ashred of evidence - that "independent expenditures, including those made by corporations, do
not give rise to corruption or the appearance of corruption.,,2 Months later, a federal appeals
court explicitly relied on Citizens United to hold that "contributions to groups that make only
independent expenditures also cannot corrupt or create the appearance of corruption. The[Supreme] Court has effectively held that there is no corrupting 'quid' for which a candidate
might exchange for a corrupt 'quO.",3
1 130

s. Ct. 876 (2010).

2Id. at 909.
J

SpeechNow.org v. FEe, 599 F.3d 686, 694-95 (D.C. Cir. 2010).

153
These decisions tum common sense on its head. To rule that a corporation's spending onelections (the "quid") is not intended for an exchange of favorable policy, access and influence(the "quo") belies reality.
The breathtaking indifference of the Supreme Court to well-settled precedent (and facts)
shook democracy to its core, and unleashed a torrent of secret money over our subsequent federal
elections. Super PACs quickly opened for business, soliciting tens of millions of dollars,
including money funneled through sham corporate front groups that exist for no other reason
than to hide the identity of political spenders from the electorate.

TbeMoney2010 marked the first election year of Super PAC dominance in our elections. That year,
84 Super PACs collected over $84.9 million, spending $65.3 million of that amount on politicalexpenditures" Outside spenders, excluding party committees, dumped over $299 million in
independent expenditures, electioneering communications and other communication costs. 5
Other non-disclosing groups, such as tax-exempt nonprofit organizations, spent over $132
million influencing our elections. 6 Disturbingly, 44% of outside spending in 2010 came fromsources that failed to disclose their donors, compared to 25.2% in 2008, and just 1.3% in 2006. 7
2012 will be the most moneyed election in our history. As of this writing, the number ofSuper PACs has risen exponentially to 678, and they have already spent $144 million of the $281
million that they have raised thus far. g By comparison, at this point in 2008 with over threemonths to go before Election Day, outside groups had spent a little over $36 million on
independent political expenditures, even then a significant sum but paling in comparison to
what's been spent already this year. 9 Some Republican-aligned groups led by Karl Rove, theKoch brothers and the United States Chamber of Commerce are planning to spend approximately$1 billion on federal elections this cycle. to

4 Super PACs, CENTER FOR RESPONSIVE POLITICS. http://www,opensecrets,orglpacs/superpacs,php?cycle~2010f(last updated July 8, 2012),
5 Total Outside Spending by Election Cycle, CENTER FOR RESPONSIVE POLITICS,
http://www.opensecrets.org/outsidespendinglcycle_tots. php?cycle~20 12&view=A&chart=N#viewpt (last visited
July 17, 2012).
'Spending by Viewpoint/or Non-Disclosing Groups, CENTER FOR RESPONSIVE POLITICS
http://www .opensecrets.orgfoutsidespendingfsumm.php?cycle=201 O&chrF V &disp=O&type=U (last visited July
16,2012).
7 Outside Spending by Disclosure. Excluding Party Commillees, CENTER FOR RESPONSIVE POLITICS,
http://www.opensecrets.org/outsidespendingldisc!osure.php (last visited July 17,2012).
• Super PACs, CENTER FOR RESPONSIVE POLITICS http://www.opensecrets.orglpacs/superpacs.php?cycle=2012 (lastvisited July 17, 20l2).
9 Total Outside Spending by Election Cycle. Excluding Party Committees, CENTER FOR RESPONSIVE POUTlCS,
http://www.opensecrets.org/outsidespendinglcycle_!ots.php?cyde=2012&view=Y&charFN#viewpt (last visited
July 11,2012),!O Mike Allen & Jim Vandehi, GOP Groups Plan Record $1 Billion Blitz, Poum;o, May 30, 2012,
http://www.politico.com/newslstoriesf0512f76849.htm!.

2

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While a significant percentage of funds donated to Super PACs are directly paid out of
for-profit corporate coffers, an even larger percentage is coming from wealthy individual donors- with 93% of Super PAC's itemized contributions from individuals in contributions starting at$10,000.1l To be c1ear- the very few are determining which candidates are viable and which
candidates will fail.
Although corporations shy away from negative publicity, that does not stop them fromspending significant sums of money on our political campaigns. In 2010, the year Citizens
United was decided, Target Corp. donated $150,000 to a political group, Minnesota Forward,that advocated for the election of a candidate opposed to the rights of gays and lesbians tomarry. 12 Demonstrations quickly followed, showing that Target's shareholders and customers
could, as Citizens United explained, "hold corporations and elected officials accountable for theirpositions.,,13 Corporations have plenty of other options to participate in elections, however. The
New York Times reports, for example, that American Electric Power, Prudential Financial, and
Dow Chemical have each given at least $1 million each to (c)(4) organizations and othernonprofit groups spending money on political campaigns.14 Insurance giant Aetna gave a
Republican-leaning nonprofit known for attacking supporters of the Affordable Care Act over $3
million last year. 15 Whether spent secretly or publicly, however, the damage to representative
democracy is done. Corporate spending distorts the political process by using funds generated
for economic purposes on public policies that its own shareholders and customers oppose.

The Secrecy
While we know hundreds of millions of dollars are dominating the airwaves, there is no
streamlined process to analyze precisely where all of the funds are coming from, other than thatthey are from corporate entities and wealthy individuals.
More than two years after Citizens United, because Congress and the Federal Election
Commission have failed to enact an adequate system of disclosure, 16 Americans are still in thedark about who exactly is funding these shadow campaigns. That's because our current laws andregulations legalize money laundering. If corporations or wealthy individuals want to remain
anonymous, they are free to give to shell organizations, which then give to Super PACs
dedicated to the election or defeat of candidates. The Super PAC only discloses the name of thesham organization or 50 1(c)(4) that transferred money to the Super PAC, rather than theunderlying donors. Satirical comedian Stephen Colbert has brilliantly educated his viewers
II BLAIR BOWIE & ADAM LIoz, AUCTIONING DEMOCRACY 1, Demos & U.S. PIRG (2012),
http://www.demos.orglpublicationlauctioning-democracy-rise-super-pacs-and-2012-election.
12 Brody Mullins & Ann Zimmerman, Target Discovers Downside to Political Contributions, WALL ST. J., Aug. 7,
2010, http://online.wsj.comiarticle/SB I 000 142405274870398830457541365 0676561696.html.
13 130 S. Ct. at 916.
14 Mike McIntire & NichGlas CGnfessore, Tax-Exempt Groups Shield Political Gifts a/Businesses, N.Y. TIMES, July
7, 20 12, http://www.nytimes.coml2012107108/us/politics/groups-shield-political-gifts-of-businesses.htm!.
1l Jd.
16 Importantly, the Supreme Court upheld the constitutionality of disclosure requirements by a vote of 8-1, reasoningthat disclosure of expenditures allows shareholders to "determine whether their corporation's political speechadvances the corpGration's interest in making profits, and citizens can see whether elected officials are 'in the
pocket' of so-called moneyed interests." Citizens United, 130 S. Ct. at 916.

3

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about these mechanics with his own Super PAC, forming his Anonymous Shell Corporation (a50 I (c)(4) "social welfare" organization) to accept money for political purposes that is thendonated directly to his Super PAC. 17
Of course, corporations and other wealthy individuals can now bypass the minimum
disclosure requirements of Super PACs all together and simply give to 501(c)(4) organizations,which can then make political expenditures without any disclosure of donors whatsoever. Karl
Rove's American Crossroads GPS, a "social welfare" (c)(4) organization, is a prime example.
Citing "sources" (because the organization is under no legal obligation to disclose any of its
donors), news outlets credited the anonymity ofc(4) organizations like Mr. Rove's as the
motivating factor for a billionaire casino mogul to give generously - in the multiple millions ofdollars - to fund the organization's political spending. ls
The Relationships to Campaigns
Even without disclosure, the notion that Super PACs are "independent" from politicalcandidates, and therefore cannot lead to corruption or the appearance of corruption, is farcical.
While federal law holds that "coordination" between candidates and Super PACs and otherspenders is prohibited, its le~al definition is cramped, narrow and fails to capture conduct that isby no means "independent." 9The Federal Election Commission's advisory opinion on this matter is illustrative. It
authorizes officeholders and candidates to "attend, speak at, or be featured guests at fundraisersfor" Super PACs "at which unlimited individual, corporate and labor organization contributions
will be solicited.,,20 The behavior of the two presidential candidates demonstrates the absurdityof the "independence" of Super P ACs. President Obama's own campaign website touts that "thecampaign has decided to do what we can, consistent with the law, to support Priorities USA [apro-Obama Super PAC] in its effort to counter the weight of the GOP Super P AC.'.21 It
continues that "White House and Cabinet officials will attend and speak at Priorities USA
fundraising events" but "won't be soliciting contributions for Priorities USA.,,22 Meanwhile,
Karl Rove, the head of American Crossroads, spoke at a posh retreat for individuals that have
hauled in six figure donations to Governor Mitt Romney's campaign.23 Rove also spoke at aluncheon "held just outside" the retreat hosted by Solamere Capital, a private equity firm
17 Interview by Terry Gross with Trevor Potter, Fresh Air, NAT'L PuBLIC RADIO (Feb. 23, 2012),
http://www .npr.org/20 12/021231 147294509/examining-the-superpac-with-colbeTts-trevor-potter.
"Kenneth P. Vogel & Steve Friess, Karl Rove Hits Big: The Binh ofa Mega-Donor, POLITICO, July 13, 2012,

http://www.politico.cominews/stories/0712178466.htrnl.
19 See 2 U.S.C. § 441a(a)(7)(B); II C.F.R. § 109.21
20 FEC Advisory Opinion 2011-12, pg. 4, available at
http://saos.nictusa.comisaos/searchao?SUBMIT=ao&AO=3268.
21 Jim Messina, We Will Not Play by Two Sets of Rules, Obama for America, Feb. 6, 2012,
http://www.barackobama.comlnews/entry/we-will-not-play-by-two-sets-of-rules.
22 Id.
23 Philip Rucker, Romney Plans Posh Weekend Donor Retreat Featuring Rove and VP Hopefuls, WASH. POST, June20, 2012, http://www.washingtonpost.comlpolitics/romney-plans-posh-weekend-donor-retreat-featuring-rove-andvp-hopefulsl2012/06/20/gJQApFYNqV_story.html; Peter H. Stone, Karl Rove Gave Secret Speech Outside Romney
Donor Retreat, BUFFINGTON POST, July 9, 2012, http://www.huffingtonpost.coml2012/07/09lkarl-rovespeech_n_1656013.html.

4

156
founded by Governor Romney's son. 24 It was reported that Mr. Rove "was pushing for
Crossroads the whole time," "promot[ing] his Super PAC and an affiliated nonprofit, Crossroads
GPS, to campaign donors during private meetings during the retreat.,,25
And yet, even with government officials authorized to appear at Super PAC fundraisers,
and heads of Super PACs appearing at candidates' fundraising retreats, one is supposed topresume the official campaign and its shadow Super PAC are wholly independent, with zero riskof corruption or the appearance thereof.
Former Speaker of the House and presidential candidate Newt Gingrich summed up his
failed campaign starkly. A journalist asked him if running for President is "a rich man's
game.,,26 Speaker Gingrich replied: "No. It's certainly a game which requires you to have accessto a lot of money. We couldn't have matched Romney's Super PAC, but in the end, he had I
think sixteen billionaires and we had one, and it made it tough.,,27
Advertising Scarcity
The corrupting influence of unlimited spending by wealthy individuals and corporations
raises other questions of fairness and equality in the political process. Super P ACs and other
wealthy donors are muffling the voices of political participants by snapping up airtime at apremium. Participation is becoming more expensive, because airtime is a scarce commodity,
particularly in swing states. The National Journal explained in a recent article that demand isalready forcing airtime prices to "skyrocket.,,2B The limited supply of remaining airtime willsoon become a major issue as the political season heats up. With hundreds of Super PACs andother outside groups raising hundreds of millions of dollars, a television station sales manager inPennsylvania said that 2012 "will be a record-setting year ... In the battleground states, runningout of inventory is a possibility.,,29
Complicating the matter is the provision of federal law that requires stations to allow
federal candidates "reasonable access" to the airwaves even if they need to pay market rate,
which may rise exponentially at the height of election season. 30 State and local candidates haveno such legal grounds to receive the same access as federal candidates. A campaign trade
pUblication explained that these "[ d]own ballot candidates and issue groups ... aren't protectedby ... most-favored-advertiser status. They can be bumped to less favorable ad times, have theirads dropped for other content, or told that there isn't room for them on the airwaves.")!
24 Stone, supra note 23,25!d.

26 Jonathan Karl et aI., Newt Gingrich's Advicefor Mitt Romney: Sharpen Your Animal Instincts,

ABCNEWSIYAHOO! NEWS, June 19, 20 12, http://news.yahoo.comlblogs/power-players-abc-news/newt-gingrichadvice-mitt-romney-sharpen-animal-instincts-I 05728293 .html?_ esi= I.
27 Id.
28 Reid Wilson, Buy Early and Often, NAT'L J., May 23, 2012, http://mobile.nationaljoumal.com/columns/on-thetraillbuy-early-and-often-20 120523.
29 Sean J. Miller, Could We Run Out of Airtime?, CAMPAIGNS & ELECTIONS, Mar. 21, 2012,
http://www.campaignsandelections.com/magazinelus-editioni31423 2/could-we-run-out-of-airtime. thtml

30 47 USC § 312; 47 C,F.R. § 73.1944,
31 Miller, supra note 29.

5

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Citizens United and its progeny - premised upon a constitutional right to spend unlimited
funds on elections - actually has the deleterious effect of squelching speech. The voices ofthe
wealthy and the corporations are able to speak the loudest, granting a very small minority theright to determine who is heard and who is relegated to silence on the airwaves. Where politicalcommercials are stacked on top of each other - the overwhelming majority negative - thebombardment of political ads will desensitize voters, and lead to many tuning out from politics
completely and disregarding the speech of even those who can afford to buy it in modest
amounts. 32

Amend the Constitution
While it is "emphatically the duty of the [courts] to say what the law is,,,)3 it is We thePeople that adopt the Constitution as the law's most basic foundation. A line of Supreme Court
cases, from Buckley v. Valeo through Citizens United, have wrongly interpreted the First
Amendment, extending its application to artificial entities of government like corporations andprotecting their ability to electioneer, even though their interests are, by law, radically different
than those of living, breathing human beings. Further, the courts equate unlimited expendituresand sums of money as constitutionally-protected speech, when in fact it is property. The
poisonous effects of these decisions present a grave harm to our democracy, as demonstrated by
the rise of Super PACs and secretive nonprofit spending. It is necessary, therefore, that thepeople make permanent our core political values in a Constitutional amendment to provide that
corporations are not entitled to the constitutional rights of real people, and that unlimited
spending on politics is not free speech.
It is time for the people to reclaim our democracy.

Corporations are Not Entitled to the Constitutional Rights of Real People
Corporations are privileged with limited liability and perpetual life for economic
purposes. Their interests are not always - nor often - the same as those of citizens. Corporate
spending in our elections distorts the political process far more than even large donor money,
because corporations are using their general treasury funds to influence policy, when its
treasury's purpose was instead to drive the engine of economic growth. The law obligatescorporations to put profits ahead of the greater societal good, whereas real living, breathingpeople must balance their narrow interests with a broader public interest when making politicaldecisions at the ballot box.
The Constitution is intended to protect the rights of individual human beings.
Corporations are mentioned nowhere in the Constitution -and their authority cannot exceed thatof "We the People." While corporations make important contributions to society as engines of
economic growth, the government grants them certain privileges that allow them to collect vast
32 Id.;

see generally Louisa Ha & Kim McCann, An Integrated Model of Advertising Cluller in Offline and Online
Media, INT'L J. OF ADVERTISING (2010).
33 Marbury v. Madison,S U.S. (1 Cranch) 137 (1803).

6

158
sums of money, but has never considered them "real people" with rights to dictate electoral
outcomes. In Austin v. Michigan Chamber a/Commerce, the Court recognized that "thecorrosive and distorting effects of immense aggregations of wealth that are accumulated with thehelp of the corporate form and that have little or no correlation to the public's support for the
corporation's political ideas" posed a serious threat to our republican form of self-government. 34
Unfortunately, Citizens United explicitly reversed Austin in its entirety.3s Lamenting the
majority's reckless decision, Justice Stevens dissented by writing that "corporations have noconsciences, no beliefs, no thoughts, no desires. Corporations help structure and facilitate theactivities of human beings, to be sure, and their 'personhood' often serves as a useful legal
fiction. But they are not themselves members of "We the People" by whom and for whom
our Constitution was established.,,36
Most egregiously, corporations have abused their "rights" bestowed on them by the
courts to overturn democratically enacted laws that municipal, state and federal governments
passed to curb corporate abuse, impairing local governments' ability to protect their citizens
against corporate harms.
Unlimited Spending on Politics is Not Free Speech
It was in Buckley v. Valeo that the Supreme Court upheld limits on contributions tocandidates because such restrictions were justified by corruption or the appearance thereof;37 but
it wrongly rejected the compelliog ioterest ofleveling the playing field to guarantee that all
citizens, irrespective of wealth and resources, have an opportunity to make their political views
known. 38

For too long, the only government interest compelling enough to protect the voices of
average, ordinary Americans in our politics has been that of corruption or the appearance thereof.
In the wake of Citizens United, even that compelling interest is crumbling. While protection
against corruption is exceedingly important - and continues to justify important regulations that
protect our democracy from embracing full legalized bribery - another important government
interest must be recognized. Equality. Americans of every stripe must have an equal opportunity
to be heard in the election process, and not be drowned out by mega-wealthy donors who equate
the size of their bank accounts with their right to be heard over other citizens.
Justice Stevens put it most eloquently in his concurrence io Nixon v. Shrink Mo. Gov't
PAC. He wrote to make "one simple point: money is property; it is not speech.... The right touse one's own money to hire gladiators, or to fund 'speech by proxy,' certainly merits significant
constitutional protection. These property rights, however, are not entitled to the same protection
as the right to say what one pleases.,,3934

494 U.S. 652, 660 {I 990).

35 130 S. Ct. 876, 882 (2010).

36 Jd. at 972 (Stevens, J., dissenting).
37 424 U.S. 1,29 (1976).
38 See id. at 48-49.
39 528 U.S. 377, 398-399 (2000) (Stevens, J., concurring).

7159
Amend2012
Citizens across the country are rising up to instruct Congress that the time has corne toenact a constitutional amendment that encompasses these principles. This fall in Montana, forexample, citizens will vote on Initiative 166 the "Prohibition on Corporate Contributions andExpenditures in Montana Elections Act." This initiative would charge Montana's delegation in
Congress to support an amendment to the United States Constitution to nullify the Supreme
Court's ruling in Citizens United v. FEe. The initiative is supported by leading Montana
Democrats and Republicans, including many small businesses. The Committee collected morethan 40,000 signatures - far more than is required.
Beyond the ballot box, legislatures in Hawaii, California, New Mexico, Rhode Island andVermont and other towns and city councils across the country have passed resolutions calling fora constitutional amendment overturning the constitutional right of corporations to spend moneyon our political campaigns.

Conclusion
Mr. Chairman, your leadership and that of this Committee is critical to restoring thevoices of the American people in their elections. The unchecked power of Super P ACs andunlimited political spending by corporations and the very wealthy, left to its own devices,
threatens to swallow the very democracy it seeks to buy.
Common Cause thanks you for the opportunity to submit this testimony.

8

160

Demos
IDEAS

&

ACTION

Testimony of Adam Lioz, Counsel at DemosThe United States Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights and Human Rights"Taking Back Our Democracy: Responding to Citizens United and the Rise of Super PACs."
July 24, 2012
Introduction
Thank you for this opportunity to submit testimony regarding the damage that Citizens United
and the rise of Super PACs has done to our system of democratic government. In the text
below I will discuss why rules that govern the role of money in politics are important to our
democracy; the impact of Citizens United and related decisions on our electoral system; andwhat Congress can and must do to promote the core American value of political equality.
What's at Stake
Before delving into the specific problems caused by the U.S. Supreme Court's misinterpretationof the First Amendment and the current Super PAC system, it is useful to take a step back andhighlight why campaign finance laws are important in the first place.
We live in a representative democracy with a capitalist economy. This means that we holddifferent values dear in the economic and political spheres.
Most Americans will tolerate some economic inequality so long as it results from meritocraticcompetition, because we respect that other values such as efficiency and proper incentives
have a role to play in structuring our economy. One's political ideology to a certain extent
determines how much inequality one is willing to sanction in the name of other values-with,all else being equal, self-identified conservatives comfortable with a wider income gap thanself-identified liberals or progressives. Few argue that everyone should receive the same
income regardless of effort, talent, or other factors.

CONN:£C't W,tfHJ)tMOS i,Tt WWW.OEMOS.ORG~FOLtOW U!~At,!1 J,(i)O£MOS_ORG,

II 'FACE8qOK.COM/DEMO.slDE.A~iCTiON
KEEP o~OF fHt t.~ATES·t}RE~OS AND ANAlYS1S
fROM rH-'M_9S AI OUR -NEW Bt;OC;):lOlfC,(SHO!>.NET

fop

M£OIA COKTACT

Com~hieati'ons (),ep~rtment

Lauren Straye~ _. _';,
lstntyer@dert\Os.t:ttt? ,1212) ' ....,4f.

"

161
Political equality, on the other hand, is a core American value. Regardless of partisan orideological affiliation, the vast majority of Americans agree that it is critical that we all come tothe political table as equals. Through multiple amendments and Supreme Court decisions, theconcept of political equality ("one person, one vote") has become a core constitutional
principle.
But, we cannot maintain a democracy of equal citizens in the face of significant economic
inequality if we allow those who are successful (or lucky) in the economic sphere to translate
wealth directly into political power. Our democratic public sphere is where we set the terms
for economic competition. It is where we decide-as equals-how much inequality,
redistribution, regulation, pollution we will tolerate. These choices gain legitimacy from thefact that we all had the opportunity to have our say. If incumbents are able to rig the rules infavor of their own success it undermines the legitimacy of the economic relations in society.
In short, democracy must write the rules for capitalism, not the other way around. And, theonly way to ensure this happens is to have some mechanism for preventing wealthy individuals
and institutions from translating their wealth into political power. Campaign finance rules arethat mechanism. These common sense restrictions on the unfettered use of private wealth for
public influence are the bulwarks or firewalls that enable us to maintain our democratic values
and a capitalist economy simultaneously. When we remove these protections, we risk creatinga society in which private wealth and public power are one and the same.
The Problem:
The core problem with our electoral system is that it gives a small number of wealthy
individuals and institutions vastly outsized influence over who runs for office, who wins
elections, and therefore who makes policy in the United States.
We know that financial resources make a huge difference in election campaigns. For decades,
candidates who have raised the most money have won the vast majority of races-often morethan 90% in a given year.l And, for decades, candidates have raised the majority of their funds
from a tiny minority of very wealthy Americans. 2

1 Bob Biersack, The Big Spender Always Wins?, Center for Responsive Politics: Open Secrets Blog.

http:Uwww,opensecrets,org!news/2012/01/big-spender·always-wins.htmL'Adam Lio" The Role of Money in the 2002 Congressional Elections, U.S. PIRG Education Fund (2003).

162
This means that Americans who can afford to give thousands of dollars to political candidates
or outside groups that support them are more likely to see candidates who share their views on
the key issues of the day win office and assume positions of power. This is the influence ofmoney on elections, rather than on politicians.
A second problem is the influence of money on politicians-the danger that winning candidates
will feel more accountable to a narrow set of large donors than to the broad swath of
constituents they are supposed to represent. This can lead to quid pro quo corruption-an
officeholder supporting or opposing certain policies at the request of a donor. Or it can lead toa more subtle desire to please a political patron. A third and related problem is the appearanceof corruption and the public's loss of confidence in the political system.
Wealthy contributors helping their favored candidates win elections or demanding their loyalty
afterwards would not systemically skew politics or policy outcomes ifthese well-heeled donors
were like the rest of us, if on average they had the same life experiences, opinions about issues,and political views as average-earning citizens.
But, unsurprisingly, this is not the case. We have long known that large campaign contributors
are more likely to be wealthy, white, and male than average Americans. And recent research
confirms that wealthy Americans have different opinions and priorities than the rest of thenation.
According to a nationwide survey funded by the Joyce Foundation during the 1996
congressional elections, 81% of those who gave contributions of at least $200 reported annual
family incomes greater than $100,000. This stood in stark contrast to the general population at
the time, where only 4.6% declared an income of more than $100,000 on their tax returns. 3
Ninety-five percent of contributors surveyed were white and 80% were men.'
We also know that wealthy Americans hold different views than average-earning citizens.
Investigators for the Joyce study cited above found that large donors are significantly moreconservative than the general public on economic matters, tending to favor tax cuts over antipoverty spending. s
3 John Green, Paul Hermson r lynda Powell, and Clyde Wilcox.lndividl.lQ/ CongreSSional Campaign Contributors: Wealthy,

Conservative and Reform-Minded (1998).
'Id.
sid.

163
A recent report by the Russell Sage Foundation confirms this finding. The authors surveyed "asmall but representative sample of wealthy Chicago-area households.,,6 They found meaningful
distinctions between the wealthy respondents they surveyed and the general public on
economic issues such as the relative importance of deficits and unemployment.
For example, wealthy respondents "often tend to think in terms of 'getting government out of
the way' and relying on free markets or private philanthropy to produce good outcomes.,,7More wealthy respondents than average Americans listed deficits as the most important
problem facing our country. Among those who did, "none at all referred only to raising
revenue. Two thirds (65%) mentioned only cutting spending.',B In spite of majority public
support for raising taxes on millionaires, among respondents, "[t]here was little sentiment for
substantial tax increases on the wealthy or anyone else."g And, in spite of recent scandals on
Wall Street, "more than two thirds of [survey] respondents said that the federal government'has gone too far in regulating business and the free enterprise system:"O
Ultimately, it is harder for working and middle class families to get ahead in the U.S. because
our political system causes our national priorities to be set by and for the wealthy minority who
funds campaigns.
The Rise of Super PACs and (Sometimes Secret) Outside Spending
A long line of Supreme Court decisions have restricted Americans' ability to curb the influenceof wealthy donors through the democratic process. Recent court decisions have made a bad
problem worse, and introduced two new problems as well: direct business spending onelections and overall lack of transparency of political spending.
Since the 1976 Supreme Court decision Buckley v. Valeo,l1 individuals have been permitted tospend unlimited money to support favored candidates. The 2010 decision in Citizens United v.
6 Benjamin I. Page, Fay lomax, Cook, and Rachel Moskowitz, Wealthy Americans, Philanthropy, and the Common Good,
September 25, 2011 at 6; available at http:Uwww.scribd.com(doc/7S022549(Wealthy-Americans·Phiianthropy·and-the·Common~Good.

'Id. atll.
'Id. at 12.
'Id. at 13.
10 Id. at 15.
11

Buck/ey v. Va/eo, 424 u.S. 1 (1976).

164
2

FEC allowed corporations to spend general treasury funds-wealth they have aggregatedthrough the benefits of the corporate form-to influence elections. This decision, along with
D.C. Circuit Court of Appeals decision in SpeechNow.org v. Federal Election Commission 13 and asubsequent FEC advisory opinion,14 gave rise to Super PACs and opened the floodgates torecord levels of private money, much of which cannot be traced to an original source.
Super PACs may raise unlimited funds from virtually any source as long as they do notcontribute to or "coordinate" directly with a candidate or political party. They are fast
becoming a favored tool for wealthy individuals and interests to use to drown out the voices of15
average citizens. At the end of the 2010 election cycle, there were 84 active super PACS. As of
July 10, 2012, there are more than 657 registered Super PACs which have raised a combined
16$242,335,123.
In February 2012, Demos partnered with the U.S. PIRG Education Fund to release Auctioning
Democracy: The Rise of Super PACs and the 2012 Election, an in-depth analysis of Super PAC
fundraising. We found that Super PACs raised the lion's share of their funds from very wealthy
individuals and for-profit businesses, and a small but significant portion of their funding issecret money, not traceable to its original source.
Wealthy individuals account for the biggest portion of Super PAC funding. Just 37 people, giving
at least $500,000 each, were responsible for more than half the itemized funds Super PACs
raised from individuals between the advent of Super PACs in 2010 and the end of 2011.17 Fully
93% of the itemized funds raised by Super PACs from individuals came in contributions of atleast $10,000, from just twenty-three out of every 10 million people in the U.S. population. is
Not surprisingly, recent Sunlight Foundation research shows that these ultra-elite $10,000+
donors-"The One Percent of the One Percent"-are quite different than average Americans.

12 130 S.Ct. 876 (2010).
" SpeechNow.org v. FEC, 599 F.3d 686 (2010).
14 Federal Election Commission, Advisory Opinion 2010~11, available at http://saos.nic:tusa,com/aodocs/AO%202010-11.pdf.
is-Super PACs & the Corporations Who Love Them, Coalition for Accountability in Political Spending (January 2012), available at
http://polilicalspending.org/docs(CAPS-SuperPAC-report.pdf.
16 2012 Outside Spending, by Super PACs, OpenSecrets.org at the (enter for Responsive Politics,

http://www,opensecrets.orgJoutsidespending!summ.php?cycle=2 012&chrt=V&type=~ (last visited July 10, 2012).
17 Adam Lioz, Demos, & Blair Bowie, U.S. PIRG, Auctioning Democracy: The Rise of Super PACs and the 2012 Election, (2012)

available at http://www.demos.org/publication/auctioning-democracy-rise-s.uper-pac5-and-2012-electlon.
IBId.

165
In the 2010 election cycle, these 26,783 individuals were responsible for nearly a quarter of all
funds contributed to politicians, parties, PACs, and independent expenditure groups.19 Nearly
55% of these donors were affiliated with corporations and nearly 16% were lawyers or
20
lobbyists. More than 32% of them lived in New York City, Los Angeles, Chicago, or San
Francisco, or Washington, DC 2! The Super PAC system has further skewed political outcomesby giving even more power to even fewer people-who don't live, work, or think like the rest ofus.
But in Citizens United the Roberts Court introduced new problems as well. More than 17% of
the funds raised by Super PACs from their inception through the end of 2011 came from forprofit businesses. 22 Businesses playa critiCal role in our society and our national economy. But,
contrary to the Citizens United ruling, for-profit businesses should not be permitted to spend
treasury funds to influence elections. First, most businesses are constrained to participate only
to maximize private profit, rather than out of regard for the public good. More important, thisspending undermines political equality by allowing those who have achieved success in theeconomic sphere to translate this success directly into the political sphere.
In addition, our political system has become considerably less transparent as a result of Citizens
United. In his opinion for the Court, Justice Kennedy relied on the proposition that voterswould know who was funding campaign advertisements and thus would be able to judge themessage accordingly.23 But current federal disclosure laws do not provide shareholders andcitizens with the "the information needed to hold corporations and elected officials
accountable for their positions and supporters.,,24 On the contrary, undisclosed politicalspending is on the rise, and Americans are increasingly in the dark about the money driving
legislative and electoral outcomes.
Non-profit groups with meaningless names such as "Americans for Freedom" can accept
unlimited contributions from anonymous donors. Their financial backers can remain
anonymous because FEC regulations only require the identification of donors who specify that
their funds were to be used for a particular political ad. "Americans for Freedom" can spend''http://,unlightfoundation.com/blog!2011/12!13/the.political.one·percent·of·the-one-percent!
2~ Id.
21 1d .
22 Adam lloz & Blair Bowie, Auctioning Democracy, supra note 8 at 6.

" Citizens United, 130 S.Ct. at 916 (2010).

24 ,d.

166
this dark money itself. Or it can direct the money to independent or affiliated politicalcommittees. While political committees are required to disclose their funders, there is no true
informational value for a voter to learn that "Americans Who Love Freedom" (a Super PAC) is
funded by "Americans for Freedom" (a nonprofit). The real identity of the source of the money
remains hidden.
A small but significant portion of the money raised by Super PACs cannot be traced back to its
original source. As mentioned above, Super PACs are required to report their donors, but they
are permitted to accept contributions from organizations-such as SOl{c)(4} non profits andtrade associations-that are not legally required to report theirs. Six point four percent of thefunds given to Super PACs between 2010 and the end of 2011 were secret, not traceable to an
original source. 25 Nearly 20% of active Super PACs received money from untraceable sources in26
2011.
The 6.4% figure cited above greatly underestimates the total amount of secret money in thesystem. "Dark money" outside groups often spending directly rather than through Super PACs.
In the 2010 election, undisclosed political spending by outside groups was already revealingsome troubling trends. Groups such as SOl(c)(4) and SOl(c)(6) non-profit organizations
reported spending over $130 million that cycle, meaning that over 46 percent of the outside
spending in the election was unaccountable. 27 Moreover, seven ofthe top ten outside spending
groups did not disclose the identities of their funders, which accounted for almost three28
quarters of all of the outside spending directed to influence the 2010 election.
The FEC recently projected that the total amount spent during the 2012 election cycle could top$11 billion-shattering previous records. 29 The sources of much of this money will not be fully
disclosed. As Norman Ornstein of the American Enterprise Institute recently observed, "We'reback to the Nixon era, the era of undisclosed money, of big cash amounts and huge intereststhat are small in number dominating American politics.,,30 This denies voters the opportunity to
25 Adam Lioz & Blair Bowie. Auctioning Democracy, supra note 8 at 4.
26
,

1d

27 Public Citizen, 12 Months After: The Effects of Citizens United on Elections and the Integrityof the Legislative Process (2011),

available at http:Uwww,citizen,org/documents!Citizens-United-20110113.pdf.
28

1d .

19 Message from FEe Chair Caroline C. Hunter, January IS, 2012, available at

http://www,fec.gov!pages!fecrecord/2012!januarY!messagefrom2012chair.shtml.
" Andy Kroll, Follow the Dark Money, Mother Jones Magazine, (July/August 2012), available at

http://www.motherjones.com/politics/2012!06!history-money-american-elections.

167"follow the money" and understand the motives behind the messages that are flooding theirairwaves during the weeks leading up to an election.
In addition to giving the wealthy an outsized political voice and skewing policy outcomes, large
contributions and secret spending are demonstrably eroding public confidence in our politicalsystem. In Citizens United, Justice Kennedy confidently predicted that "[tlhe appearance of
influence or access, furthermore, will not cause the electorate to lose faith in democracy.,,31
Unfortunately, Justice Kennedy's confidence was misplaced. Polling has shown time and againthat that big money in elections reduces Americans' trust in government. From 2001 to 2011,
the United States fell from the 16th least-corrupt country on Transparency International's
Corruption Perceptions Index to 24th place, and "nearly three in four Americans believe that
corruption has increased over the last three years.',32 The World Bank also reported recently
that corruption controls in the United States had weakened since the late 1990s and that it now
33
trails most developed nations.
Solutions
Congress, the President, federal agencies, and state legislatures can all act to reform oursystem. Because the Supreme Court had tied its hands, the U.S. Congress cannot immediately
ban Super PACs or limit outside spending-but there is plenty it can do. Congress should:

Propose a constitutional amendment to clarify that Congress and the states moy regulote
individuol and corporate political contributions ond spending. Short of a dramatic shift in
Supreme Court jurisprudence, the only way to break the dominance of wealthy individuals andinstitutions over our elections is to amend the U.S. Constitution to clarify that the First
Amendment was never intended as a tool for use by corporations and the wealthy to dominate
the political arena. To truly solve the problem, an amendment must overturn Buckley, not justCitizens United.

31 Citizens United, 130 S.Ct. at 910.
32 Eduardo Porter, The Spreading Scourge of Corporate Corruption, THE NEW YORK TIMES, (July 10, 2012), available at

http://www.nytime5.com!2012/07/11/busineS5/economY/the·spreading~5courge-of-corporate-corruption.html.
33 Id. See olso "Worldwide Governance Indicators: Country Oata Report for United States, 1996~2010'"

at http:Uinfo,worldbank,org(governance(wgi(pdf!c228,pdf.

THE WORLD BANK, available

168
Amending the Constitution will require the support of two-thirds of both the House of Representatives
and the Senate and then ratification by three-fourths of the state legislatures. This is, admittedly, a very
high bar. But, we have reached this high bar in the past, often specifically to expand politicalparticipation and vindicate the core value of political equality. The Fourteenth, Fifteenth, Nineteenth,and Twenty-Sixth Amendments all extended the right to political participation to previously
disempowered groups while limiting the disproportionate political influence of existing stakeholders.
In addition, public opinion is clearly on the side of reform. Since Citizens United was handed down, large
majorities of Americans from both parties have indicated that they opposed the ruling." Polls fromaround the time of the decision showed that 72% of Americans supported "backed congressional action
to curb the ruling"" and nearly 80% would support a constitutional amendment."

Propose ond confirm only judges ond justices who understand the importance of political equality andwho will interpret the First Amendment properly. The vast majority of Americans understand that theFirst Amendment was intended to promote robust political participation by all the people, not lock in
the privileges of wealthy individuals and institutions. We need the next generation of judges andjustices to break from the Roberts Court's antiregulatory orthodoxy and give Congress, states, andlocalities more flexibility to promote political equality, safeguard our democracy, and strike the properbalance between liberty and equality.
Encourage small political contributions by providing vouchers or tax credits. Encouraging millions of
average-earning Americans to make small contributions can help counter-balance the influence of thewealthy few. Several states provide refunds or tax credits for small political contributions, and thefederal tax code did the same between 1971 and 1986. 37 Past experience suggests that a well-designed
program can motivate more small donors to participate?' An ideal program would provide vouchers tocitizens up front, eliminating disposable income as a factor in political giving."
Match smoll contributions with public resources to encourage small donor participation and provide
candidates with additional clean resources. Candidates who demonstrate their ability to mobilize
34 Stan Greenberg and James Carville. Democracy Corps, Erica Seifert, Greenberg Quinlan Rosner, & David Donnelly, PublicCampaign Action Fund, "Two years after Citizens United, voters fed up with money in politics," (January 19, 2012), available at~Ll~ampaignmon~y.org/files/DemCorpPCAfDl~'!IoFINAL.pdf; Dan Egan, Poll: Large majority opposes Supreme Court's
decision on campaign financing, WASHINGTON POST, (February 17, 2010), available at http://www.washingtonpost.com/wp~

dyn/contenVarticie/20 10/02/17/AR2010021701151.htmi.
ld .

3S

36 Hart Research Associates poll available at htto:llfreespeechforpeople.org/
37 Thomas Cmar, Towards a Small Donor Democracy: The Past and Future of Incentives for Small Political Contributions, U.S.

PIRG Education Fund (2004).
38

1d .

]9 See Bruce Ackerman and Ian Ayresl VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE (2002).

169
support in their districts should receive a public grant to kick-start their campaign, and be eligible forfunds to match further small donor fundraising. This would both encourage average citizens toparticipate in campaigns and enable candidates without access to big-money networks to run viablecampaigns for federal office.

Require robust disclosure of all contributions and expenditures used to influence elections. Voters havethe right to know who is attempting to influence our elections and to whom their elected officials may
feel accountable once elected.
Protect the interests of shareholders whose funds may currently be used for political expenditures
without their knowledge or approval. Congress should require for-profit corporations to obtain theapproval of their shareholders before making any electoral expenditures; and require any for-profit
corporation to publicly disclose any contributions to a SOl(c)(4) organization that either makes an
independent expenditure or contributes to a Super PAC.

Tighten rules on coordination. Current rules prohibiting coordination between Super PACs andcandidates are riddled with loopholes. The Federal Election Commission should issue stronger
regulations that establish legitimate separation between candidates and Super PACs. For example, theCommission could prevent candidates from raising money for Super PACs; prevent a person fromstarting or working for a Super PAC supporting a particular candidate if that person has been on thecandidates official or campaign staff within two years; and prevent candidates from appearing in Super
PAC ads (other than through already-public footage).
If the FEC refuses to act, Congress can pass legislation codifying these common-sense rules.
Conclusion
For decades wealth individuals and interests have dominated the American political landscape. The

Citizens United case and related rulings led to the rise of Super PACs and made a bad situation worse.
Congress can and must act to vindicate the core American value of political equality by creating a
democracy that is truly of, by, and for the people. Congress should refer a constitutional amendment tothe states to overturn Buckley and Citizens United, move past the Roberts Court's anti-regulatory
orthodoxy, and restore balance and common sense to our First Amendment. And, it can move forward
on several other critical fronts, such as providing clean resources to qualified grassroots candidates,
while advocates work to ratify the amendment in three-quarters of the states.

170

FREESPEEC~PEOPL.

ORG

United States Senate Committee on the Judiciary
Subcommittee on the Constitution,
Civil Rights, and Human Rights
July 24, 2012

Hearing on Constitutional Amendment Proposals to Overturn the
US Supreme Court's Citizens United Ruling

Written Testimony of Jeffrey D. Clements
Co-Founder and President, Free Speech For People

Free Speech For People
48 North Pleasant Street, Suite 304
Amherst, Massachusetts 01002(413) 253-2700
jclements@freespeechforpeople.org
www.freespeechforpeople.org

171
United States Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rigbts, and Human Rights
July 24, 2012
Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony ofjeffrey D. Clements, Free Speech For People
Page 2 of 15

Chainnan Durbin and Members of the Senate Judiciary Committee's Subcommittee on
the Constitution, Civil Rights, and Human Rights:
I appreciate the opportunity to submit this written testimony on behalf of Free
Speech For People (www.freespeechforpeople.org). You are to be commended forholding this hearing on one of the most important subjects now facing the American
Republic.
As an attorney, I have handled public interest and private litigation matters onbehalf of global corporations, small businesses, and people for more than two decades.
Before opening Clements Law Office, LLC in 2009, I served as Assistant Attorney
General and Chief of the Public Protection & Advocacy Bureau in Massachusetts, as apartner in the law finns of Mintz Levin and Clements & Clements, LLP in Boston, and as
a litigation attorney in Portland, Maine.
Following the Supreme Court's announcement in June 2009 that the Court would
hear re-argument in Citizens United v. Federal Election Commission on the question ofoverruling McConnell v. Federal Election Commission and Austin v. Michigan Chamber
o/Commerce, I filed an amicus brief on behalf of several citizen groups. When the Court
announced its 5-4 decision in Citizens United, I co-founded Free Speech For People, andserve as its president. I am also the author of the new book, Corporations Are Not People(with a foreword by Bill Moyers), released in February 2012 by Berrett-Koehler
Publishers.
Free Speech For People, launched moments after the Citizens United ruling,
is a national, non-partisan organization that works to challenge the misuse of
corporate power and restore republican democracy to the people.
• We catalyze and advance the movement to amend the U.S. Constitution
to overturn Citizens United, Buckley v. Valeo, and the fabrication of
corporate constitutional rights.
• We engage in legal advocacy to confront the misuse of the U.S.
Constitution to claim corporate exemptions from our laws, which
damage our communities and undennine freedom and selfgovernment.
• We revive and renew corporate charter revocation laws and other tools
to make corporations responsible and accountable to the public.
Since our founding, we have helped to lead the growing momentum across thecountry for a constitutional amendment to reclaim our democracy. As of this writing, six
states (California, Hawaii, Maryland, New Mexico, Rhode Island, and Vennont) havegone on record calling for an amendment and others will soon join that list. Hundreds of172
United States Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights
July 24, 2012

Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony ofJeffrey D. Clements, Free Speech For People
Page 3 of 15

resolutions have passed in cities and towns throughout the nation. Millions of Americans
have signed petitions supporting an amendment. Eleven state attorneys general havejoined the call. More than 2000 business leaders are now on board. More than a dozen
amendment bills are now pending in the US Congress. And, the President of the UnitedStates has said an amendment may be necessary.
The extraordinary response to the Citizens United decision reflects widespread
understanding that the Supreme Court majority's radical interpretation of the First
Amendment to hold that the American people and our elected representatives are
powerless to regulate corporate political expenditures is fundamentally wrong as a matterof constitutional law, history, and our republican principles of self-government. The
opposition to Citizens United and determination to overturn it cuts across all partisanlines: 82% of Independents, 68% of Republicans, and 87% of Democrats support a
constitutional amendment to overturn the ruling (January 20 11, Hart Research Associates
survey conducted for Free Speech For People).
In this testimony, I will address the consequences of the pernicious "corporate
rights" theory that resulted in the Citizens United holding, and the far worse
consequences to come. I will also show why these consequences are not the result of thelimitations or implications of our First Amendment and Bill of Rights, but arise from a
new and deeply flawed activism on the bench. And, I will discuss the pressing need for aconstitutional amendment to overturn the Citizens United ruling, make clear that
corporations are not people with constitutional rights, and restore the authority ofCongress and the States to regulate campaign spending in our elections.

Citizells United, SpeechNow, and the Impact on Our Elections
CitizellS United involved a corporate challenge to the most recent effort to control
the corrupting and unfair influence of corporate money in politics: the Bipartisan
Campaign Reform Act passed in 2002, frequently called the McCain-Feingold law after
its Republican and Democratic Senate sponsors. This law extended pre-existing statutes
prohibiting corporations from using corporate funds to advocate voting for or against acandidate for federal office.
Sweeping aside McConnell v. FEC, decided only nine years ago, and overrulingAustin v. Michigan Chamber o/Commerce, a 1990 case upholding state law restrictions
on corporate political expenditures, the Court held that the restrictions on corporate
expenditures violated First Amendment protections of free speech. In effect, the majority
decision (Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices
Antonin Scalia, Clarence Thomas and Samuel Alito) equates corporations with people forpurposes offree speech and campaign expenditures.

173
United States Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights
July 24, 2012

Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ru ling
Testimony of Jeffrey D. Clements, Free Speech For People
Page 4 of 15

The extraordinary ruling in Citizens United is unhinged from traditional American
understandings of both the First Amendment and corporations. As Justice Stevens'dissent in Citizens United makes clear, Austin, McConnell and a substantial line ofSupreme Court and lower court cases, backed by two centuries of Constitutional
jurisprudence, correctly ruled that Congress and the States may regulate corporate
political expenditures not because of the type of speech or political goals sought bycorporations but because of the very nature of the comorate entity itself. In other words,
cases challenging corporate political expenditure regulations are not really about the
speech rights of the American people; they are about the power of the American people
to regulate corporations and the rules that govern such entities. Justice John Paul Stevens'dissent rightly calls the majority opinion a "radical departure from what has been settled
First Amendment law."
Remarkably, in a case where the central question is the role and place ofcorporations in our democracy, Justice Kennedy's opinion does not once define or
explain what a corporation is, nor does he even touch upon the legal definition or featuresof a corporation. Instead, in what Justice Stevens' compelling dissent calls "glittering
generalities," the majority opinion focuses on "associations of citizens," "speakers,""voices," and, apparently without irony, a "disadvantaged person or class." Citizens
United, slip op. at 24.

It is a basic and fundamental understanding in the law that corporations are not"associations of citizens," but are creatures of statute, usually State statute, withcharacteristics defined by their charters and the state laws that authorize the use of
corporate charters. "Those who feel that the essence ofthe corporation rests in thecontract among its members rather than in the government decree ... fail to distinguish,
as the eighteenth century did, between the corporation and the voluntary association."lCorporations cannot exist unless elected representatives choose to enact laws thatenable people to organize a corporation and provide the rules ofthe road for using a
corporation. People can start and run businesses without government involvement or
permission; people can form advocacy groups, associations, unions, political parties andother groups that exist without the government's authorizing statute. But people, or even"associations of citizens," cannot form or operate a corporation unless the state enacts alaw providing authority to form a corporation, and providing the rules of the road that gowith use of the corporate form.
Advantages ofthe corporate form are a privilege provided by government forsound policy reasons. We the people do that through our legislatures because we think,

Oscar Handlin and Mary Plug Handlin, Commonwealth: A Study of the Role ofGovernment in theAmerican Economy, Massachusetts, 1774-1861 at 92 and n. 18.

174
United States Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights
July 24, 2012
Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ru ling
Testimony of Jeffrey D. Clements, Free Speech For People
Page 5 of 15

accurately I believe, that such advantages are economically to the advantage of all of us
and society over the long haul. Yet corporations, particularly powerful global
corporations, - and too many judges
confuse these privileges and policies with
Constitutional rights.
The Supreme Court used to resist this confusion. As the Court said in Austin v.
Michigan, one of the cases overruled by Citizens United:
State law grants corporations special advantages - such as
limited liability, perpetual life, and favorable treatment of
the accumulation and distribution of assets ... Thesestate-created advantages not only allow corporations toplaya dominant role in the Nation's economy, but also
permit them to use 'resources amassed in the economic
marketplace' to obtain 'an unfair advantage in the politicalmarketplace. ,2Similarly, in McConnell v. FEC, the Court pointed to "the corrosive and distorting effects
of immense aggregations of wealth that are accumulated with the help of the corporate
form and that have little or no correlation to the public's support for the corporation's
political ideas.,,3
Following Citizens United, the DC Circuit Court of Appeals expanded the impactof the ruling through its decision in SpeechNow.org v. FEC, which removed all limits oncontributions to independent expenditure committees and allowed for the creation ofSuper PACs. Yet, while the rise of Super PACs has gained significant attention in recent
months, it is not the only vehicle through which big money interests have engaged inspending millions of dollars in our political process. The New York Times recently issued
an extensive report on how for-profit corporations are funneling their general treasury
funds through non-profit vehicles to influence our elections ("Tax-Exempt Groups Shield
Political Gifts of Businesses," The New York Times, July 7, 2012). The Citizens Unitedand SpeechNow rulings combined have resulted in an exponential rise of big money
dominance of our politics, presenting a direct and serious threat to our democracy.
Further details of the dangerous impact of these rulings on our elections can be found in
the amicus brief Free Speech For People recently submitted before the US Supreme
Court in American Tradition Partnership v. Bullock (available at:
http://wv.w.freespeechforpeople.com/sites/defaultifilesIMT%2OAmicus%20Brief.pdf).

Austin v, Michigan Chamber o/Commerce, 494 U.S. 652, 658- 59 (1990) (quotingFECv,
Massachusetts Citizens/or Life, 479 U,S. 238, 257 (1986)).
J
McConnell, at 205 (citations omitted).

175
United States Senate Committee on the judiciary
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july 24, 2012

Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony of jeffrey D. Clements, Free Speech For People
Page 6 of 15

Further, the impact of Citizens United goes far beyond the federal Bipartisan
Campaign Reform Act and federal elections. With no State even in the case before the
Court, the Citizens United majority essentially erased the law oftwenty-four states thatbanned corporate political expenditures. Thus, with virtually no consideration of thefederalism implications and the circumstances in the States, the Supreme Court
transformed State elections.
The five Justice majority in Citizens United, in fact, recently reaffirmed its refusal
to consider these federalism implications and circumstances in the States when it
summarily reversed the Montana Supreme Court in American Tradition Partnership v.
Bullock and struck down the Montana Corrupt Practices Act without any hearing on the
merits. Since 1912, the Montana Corrupt Practices Act had barred corporate money inelections, and the Montana Supreme Court, in upholding the law, had cited the extensive
factual record and history justifying the statute. The US Supreme Court's refusal toreview that factual record demonstrates further the need for a constitutional amendment
to overrule the Court and protect our democracy.

Citizens United also dramatically impairs the impartiality, and the perceived
impartiality, of justice in America. Twenty-one states have elected Supreme Court
justices, and thirty-nine states elect at least some appellate or major trial court judges.
Even before Citizens United, as former Justice Sandra Day O'Connor has said, "In too
many states, judicial elections are becoming political prizefights where partisans andspecial interests seek to install judges who will answer to them instead of the law and theConstitution." 4 Now corporations have even greater ability to bring their financial
resources to bear on those elections, further undermining the independence of the state
judiciaries.
Finally, because Citizens United rests on the transformation of the expenditure ofcorporate general treasury funds into new "corporate speech" rights under the First
Amendment, every elected official and person interested in representing their fellow
citizens in America, from candidates for the presidency to candidates for the local school
and water district, must now reckon with the power of corporate money to change theoutcome of elections.

See www.justiceatstake.org. State Supreme Court candidates raised $200.4 million from 1999-2008,
compared with an estimated $85.4 million in 1989-1998. Source: National Institute on Money in State
Politics. In Caperton v. Massey, 556 U.S. __ (2009) the Supreme Court held that the due process clauserequired the recusal of a justice who was elected with the help of$3 million in campaign expenditures froma West Virginia coal executive whose corporation was in the midst of appealing a $50 million jury award
against his company. The justice, once elected, cast the deciding vote to overturn the suit.
4

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United States Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights
July 24,2012
Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony of Jeffrey D. Clements, Free Speech For People
Page 70f15

Beyond Citizens United and Campaign FinanceThe damage to democracy from the dubious "corporate rights" doctrine goes,
unfortunately, beyond Citizens United and beyond campaign finance. The disdain shownby the majority in Citizens United for the policy judgments of the people's elected
representatives in Congress and the States is striking, but it reflects a growing disdain thathas driven corporate speech activism in the judiciary for the past two decades.
Judicial respect for the people's choices about corporate regulation began to erodein the late 1970s and 1980s. The path to Citizens United follows from the fabrication
beginning in those years of a corporate rights/commercial speech doctrine under the First
Amendment. This new doctrine reached its zenith in Citizens United, but its damaging
effects on democracy have already gone far beyond campaign finance laws.
For 200 years, there was no such thing as a right to corporate speech under theFirst Amendment. And the First Amendment did not prevent legislatures from enacting
restrictions on corporate expenditures to influence elections. During the Nixon
Administration, however, in reaction to increasing legislative efforts to improve
environmental, consumer, civil rights and public health laws, corporate executives began
aggressively to push back for the creation of corporate rights. They followed a playbook
spelled out in a memo from Lewis Powell, then a private attorney advising the Chamberof Commerce. 5 President Nixon then appointed Lewis Powell to the Supreme Court.
Over the following years, a divided Supreme Court, over powerful dissents by Justice
William Rehnquist and others, transformed the First Amendment into a powerful tool for
corporations seeking to evade democratic control and sidestep sound public welfare
measures.
In 1978, several large corporations - including Gillette and Bank of Boston challenged a Massachusetts prohibition on corporate expenditures to influence ballot
questions. 6 In an opinion authored by the former Chamber of Commerce lawyer, the
now-Justice Powell, a 5-4 decision agreed with the corporate First Amendment claim,and cast aside the people's wish to keep corporate money out of Massachusetts citizens
referenda. With increasing aggressiveness, the judiciary has since used this new
corporate-rights doctrine to strike down state and federal laws regulating corporate
conduct. Even a partial list of decisions striking down public laws shows the range of
regulations falling to the new corporate rights doctrine, from those concerning clean andfair elections; to environmental protection and energy; to tobacco, alcohol,

The background ofthe 1971 Lewis Powell memorandum and the text of the memorandum itself
are available at http://www.recIaimdemocracy.orgicorporate_accountability/powell_memo_lewis.html.
6First Nat'/ Bank ofBoston v. Bel/otti, 435 U.S. 765 (1978).

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United States Senate Committee on the Judiciary
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July 24,2012
Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony of Jeffrey D. Clements, Free Speech For People
Page 8 of 15

phannaceuticals, and health care; to consumer protection, lotteries, and gambling; to race
relations, and much more. 7
One example in particular illustrates how the new corporate speech doctrine
departs from the meaning of the people's speech rights under the First Amendment. In
the 1990s, the Monsanto corporation used recombinant DNA to develop a bovine growthhonnone product that resulted in significant increases in milk from cows treated with the
Monsanto drug. Most of Europe, Australia, New Zealand, and Canada banned the use ofrecombinant bovine growth honnone. The United States did not. Vennont, horne tomany of New England's surviving local dairies and a leader in organic and local

See Bellotti, 435 U.S. 765; FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (as applied
to issue advocacy advertisements of non-profit corporation, BCRA held to violate First Amendment);
Thompson v. Western States Med Or., 535 U.S. 357 (2002) (federal restriction on advertising ofcompounded drugs invalidated); Lorillard v. Reilly, 533 U.S. 525 (2001) (Massachusetts regulations of
tobacco advertising targeting children invalidated); Greater New Orleans Broad Ass 'n, Inc. v. UnitedStates, 527 U.S. 173 (1999) (federal restriction on advertising of gambling and casinos held
unconstitutional); 44 LiquorMart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (Rhode Island law restricting
alcohol price advertising invalidated); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (federal restriction
on advertising alcohol level in beer invalidated); City of Cincinnati v. Discovery Network Inc., 507 U.S.
410 (1993) (municipal application of handbill restriction to ban news racks for advertising circulars on
public property held unconstitutional); Pacific Gas & Elec. Co. v. Pub. Uti!. Comm'n of California, 475
U.S. I (1986) (invalidating California rule that utility corporation must make bill envelopes, which areproperty of ratepayers, available for other points of view besides that of the corporation); Central Hudson
Gas & Electric Corp. v. Pub. Servo Comm'n ofNew York, 447 U.S. 557 (1980) (New York rule restricting
advertising that promotes energy consumption invalidated); Bellsouth Telecomm., Inc. V. Farris, 542 F.3d
499 (6th Cir. 2008) (Kentucky may not prohibit corporation from stating on the customer bill that a fee thatis to be assessed from the corporation and not passed on to consumers was a "tax" suggesting inaccuratelythat consumers paid in their bill); Allstate Ins. CO. V. Abbott, 495 F.3d 151 (5th Cir. 2007) (Texas law
regulating advertising of auto body shops tied to auto insurers invalidated); This That & the Other Gift &Tobacco, Inc. V. Cobb County, Georgia, 439 F.3d 1275 (II th Cir. 2006) (Georgia ban on advertisements ofsexual devices invalidated); Passions Video, Inc. V. Nixon, 458 F.3d 887 (8th Cir. 2006) (Missouri statuterestricting advertisements of sexually explicit businesses invalidated); Bad Frog Brewery v. N. Y State
Liquor Auth., 134 F.3d 87, 91 & n.1 (2d Cir. 1998) (New York regulation barring beer bottle label withgesture described by the Court as "acknowledged by Bad Frog to convey, among other things, the message'fuck you'" held unconstitutional); Int'/ Dairy Foods Assoc. V. Ames/oy, 92 F.3d 67 (2d Cir. 1996)(Vermont law requiring disclosure on label of dairy products containing milk from cows treated withbovine growth hormones invalidated); New York State Ass 'n olRealtors, Inc. V. Shaffer, 27 F.3d 834 (2d Cir.
1994) (invalidating New York law authorizing the Secretary of State to declare "non solicitation" zones forreal estate brokers); Sambo 's Res!., Inc. V. City ofAnn Arbor, 663 F.2d 686 (6th Cir. 1981) (First
Amendment allows corporation to break agreement with City and use name found to be deeply offensive
and carry prejudicial meaning to African Americans); John Donnelly & Sons v. Campbell, 639 F.2d 6 (I st
Cir. 1980) (invalidating Maine law restricting billboard pollution, even though law allowed (and paid for)commercial signs put up by state of uniform size at exits and visitors centers); Washington Legal Found v.
Friedman, 13 F. Supp. 2d 51 (D.D.C. 1998) (invalidating federal law regulating drug manufacturers' use ofjournal reprints and drug corporation-sponsored educational seminars to promote off-label uses forprescription drugs); £quifax Services Inc. V. Cohen, 420 A. 2d. 189 (Me. 1980) (invalidating portions ofMaine credit reporting statute as First Amendment violation). Many more such cases may be found in thestate and federal reports.

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United States Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights
July 24, 2012
Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony of Jeffrey D. Clements, Free Speech For People
Page 9 ofl5

agriculture, did not go so far as to ban the product but merely enacted a law requiring thatmilk products derived from cows treated with the Monsanto drug be labeled to disclosethat information. That way, people could decide for themselves.
The law was challenged by the industrial dairies, and was struck down as a
violation of the First Amendment. Int'l Dairy Foods Assoc. v. Amestoy, 92 F.3d 67 (2dCir. 1996). This result twisted First Amendment protections of conscience that preventthe government from compelling people to say what they do not believe into something
to prevent people from knowing what corporate managers do not wish to disclose.
Corporations, of course, do not have consciences and indeed, unlike people, do not exist
in the absence of government action. Yet more and more corporations now misuse theFirst Amendment to advance narrow corporate interests at the expense of the public
interest.
The examples of corporate misuse of the First Amendment continue to increase.
Recently, tobacco corporations have sued the United States of America and tried to use
the corporate speech doctrine to block enforcement of the Family Smoking Prevention
and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009) (Commonwealth
Brands, Inc. et. al. v. United States ofAmerica, et. al. (W.D. Ky.»; rating agency
corporations accused of fraud and misrepresentation in connection with the financial
crisis have claimed immunity under the First Amendment (Abu Dhabai Commercial
Bank v. Morgan Stanley Co. (S.D.NY»; a pharmaceutical corporation has sued theUnited States of America claiming that the federal Food, Drug, & Cosmetic Act, 21
U.S.C. § 352(a), rules that prohibit a drug manufacturer from marketing a drug for "offlabel" uses, meaning purposes for which the FDA has not approved the drug, violate"corporate speech" rights (Allergan, Inc. v. United States ofAmerica, et ai, (D.D.C.);
The Caterpillar corporation, backed by the national Chamber of Commerce, used
"corporate speech" claims to stonewall basic information requests about the corporation's
membership and financial dealings with the Chamber of Commerce and 33 otherorganizations, with the Chamber filing an amicus brief claiming the right to conceal that
information based on the corporate "defendants and the Chamber's First Amendment
Rights to freedom and privacy." (In re Asbestos Cases,(http://v.'Ww.uschamber.comlnclc/caselistiissues/freespeech.htm)

Restoring Our Constitution and Republican Democracy to the People
More than ever before, corporate money in politics corrupts and distorts ourpolitical and legislative process, and drowns out the voices and wishes of the American
people. And even when a legislative victory in the people's interest occurs, armies ofcorporate lawyers go into battle to take the matter to a Supreme Court that has forgotten
its place in the American experiment in self-government, and all too often, accedes to thecorporate claims of immunity from regulation or control by the people.

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United States Senate Committee on the Judiciary
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July 24,2012

Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony of Jeffrey D. Clements, Free Speech For People
PagelOofl5

It would be one thing if the Court's handcuffing of our ability to regulate
corporate political money was an unfortunate but necessary price of liberty, or rooted inlong-held Constitutional principles of free speech. We put up with views we findobnoxious and even repellent. We put up with rivers of crude and offensive expression in
all media, and we tolerate every variety of dissent and opinion. That is a price we pay forfreedom of speech.
But the notion of comorate First Amendment rights is not about freedom ofspeech, or even about any kind of speech or expression. It is about a kind of artificial
entity that we ourselves create and permit by legislation because we chose to do so for
economic policy reasons. To appreciate how radical the corporate rights claim in Citizens
United is, it helps to remember our history.
The growing view among many people that we must restrain and control
corporate power is not new in America and it is far from fringe. Throughout American
history, at least until very recent times, that was the mainstream view. The American
people have sought to keep corporate money out of elections virtually since the beginningof the Republic, and the root of the law struck down in Citizens United goes back to the1907 Tillman Act, which banned corporate political contributions in federal campaigns.
For many years after the founding of our nation, state legislatures enacted
corporate laws that allowed corporations, but only permitted these to be chartered forspecific public purposes, and often limited the time period in which the corporate entity
could operate. 8 Restrictions on corporate purposes were the norm, and distrust andconcern about the ability of corporations to grasp political power prevailed. 9
James Madison, often considered the primary author of our Constitution, viewed
corporations as "a necessary evil" subject to "proper limitations and guards."l0 Thomas
Jefferson hoped to "crush in its birth the aristocracy of our moneyed corporations, whichdare already to challenge our government to a trial of strength and bid defiance to thelaws of our country." 11 These views prevailed among Americans through the decades.
Until recently, it was presidents and our leaders as much as those outside of politics who
were vigilant about corporate power.
HANDLIN & HANDLIN, supra note 15, at 106-33; Louis K. Liggett Co. v. Lee, 288 U.S. 517, 54860 (1933) (Brandeis, J., dissenting). Justice Brandeis's dissenting opinion comprehensively documents thedevelopment of the corporation in America. See Liggett, 288 U.S. at 548-67.
9Liggett, 288 U.S. at 549; Head & Amory v. Providence Ins. Co., 6 U.S. 127, 166-67 (1804)("corporation can only act in the manner prescribed by law").
10
WRITINGS OF JAMES MADISON, VOL. 9 (Gaillard Hunt ed., G.P. Putnam's Sons, 1900), To J.K
Paulding, http://oll.libertyfund.orgltitleI1940/119324 (last visited July 22, 2009).
11
University of Virginia, Favorite Jefferson Quotes, Thomas Jefferson Digital Archive, To George
Logan, http://etext.virginia.eduljefferson/quotations/jeff5.htm (last visited July 22 2009).

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United States Senate Committee on the Judiciary
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July 24, 2012

Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony ofjeffrey D. Clements, Free Speech For People
Page 11 of 15

President Andrew Jackson warned of the partisan activity of the second Bank of
the United States corporation: "[T]he question is distinctly presented whether the peopleof the United States are to govern through representatives chosen by their unbiased
suffrages or whether the money and power of a great corporation are to be secretly
exerted to influence their judgment and control their decisions.,,12 President Martin Van
Buren warned of "the already overgrown influence of corporate authorities.,,13 Later,
President Grover Cleveland in his 1888 message to Congress said, "Corporations, whichshould be the carefully restrained creatures of the law and the servants of the people, arefast becoming the people's masters.,,14 Theodore Roosevelt successfully called on
Congress to enact federal restrictions on corporate political contributions, stating: "Let
individuals contribute as they desire; but let us prohibit ... all corporations from making
contributions for any political purpose, directly or indirectly.,,15
Usually, the Supreme Court, with significant exceptions and deviations from time
to time, respected this American consensus. Since the beginning of the Republic, theCourt has affirmed that elected governments of the states and nation may regulate, in an
even-handed manner, "the corporate structure" because governments create that structure.
Dartmouth College described the corporate entity as "an artificial being ... existing onlyin contem~lation oflaw," and created only for such "objects as the government wishes topromote." 6 The Court brought this understanding of the corporation to otherConstitutional provisions, such as diversity jurisdiction under Article III and the Judiciary
ActS. 17 In the Founders' era and beyond, the Court considered state citizenship ofshareholders rather than the corporation itself to determine whether people who formed
corporations could enter the federal courts in the corporate name. 18 The Court eventually
12
Andrew Jackson, 1833 Annual Message to Congo (Dec. 3. 1833) (transcript available at the
University of Virginia, Miller Center of Public Affairs.
http://millercenter.orglscripps/archive/speeches/detail/3 640).
13
Martin Van Buren, 1837 Annual Message to Congo (Dec. 5,1837) (transcript available at the
University of Virginia, Miller Center of Public Affairs,
http://millercenter.org/scripps/archive/speeches/detaiIJ3589).
14
Grover Cleveland, 1888 Annual Message to Congo (Dec. 3, 1888) (transcript available at the
University of Virginia, Miller Center of Public Affairs,
http://millercenter.org/scripps/archive/speeches/detai1!3 758).
IS
Theodore Roosevelt, 1906 Annual Message to Congo (Dec. 3, 1906) (transcript available at the
University of Virginia. Miller Center of Public Affairs,
http://millercenter.org/scripps/archive/speeches/detaiIi3 778).
16
17 U.S. at 636-637.
17
Article III provides "The judicial Power shall extend ... to Controversies ... between Citizens ofdifferent States .... " U.S. CONST. art III, § 2.
18
Bank o/the United States v. Deveaux, 9 U.S. (5 Cranch) 61, 86 (1809) (corporation is a "merelegal entity ... not a citizen"); Hope Insurance CO. V. Boardman, 9 U.S. (5 Cranch) 57,58 (1809); Sullivan
V. Fulton Steamboat Co., 19 U.S. (6 Wheat.) 450 (1821); Breithaupt v. Bank o/Georgia, 26 U.S. (1 Pet.)238 (\828); Commercial & Railroad Bank o/Vicksburg v. Slocomb, 39 U.S. (14 Pet.) 60 (1840).

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United States Senate Committee on the Judiciary
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July 24, 2012
Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony ofJeffrey D. Clements, Free Speech For People
Page 12 of 15

bowed to expediency and overruled these cases, developing a shortcut strictly limited todiversity jurisdiction. 19
In Bank ofAugusta v. Earle, 38 U.S. (13 Pet.) 519 (1839), and Paul v. Virginia,
75 U.S. 168 (1868), the Court refused to extend "special treatment" for corporations to
the protection of citizen rights under the Privileges and Immunities Clause of Article IV.
Repeatedly, the Court has held that corporations are not citizens under that clause, norunder the Privileges or Immunities Clause of the Fourteenth Amendment. 2oAs the Industrial Revolution gathered pace, the Court maintained with clarity that"[t]he only rights [a corporation] can claim are the rights which are given to it in thatcharacter, and not the rights which belong to its members as citizens of a state .... ,,21 The
Court did not examine the Constitution to determine rights "given to it in that character"because the Constitution does not create corporate rights. In upholding corporate
contracts outside the place of incorporation, Bank ofAugusta declined to rest on any
Constitutional provision, instead applying the law that created the corporation, the law of
the state where the corporation wished to enforce a contract, and "comity.,,22
While the increasingly dominant role of corporations in the American economy
did not go unnoticed by the Court, most Justices did not see any grounds for infusing thatdevelopment with Constitutional significance. 23 By 1868, corporations had "multiplied toan almost indefinite extent. There is scarcely a business pursued requiring theexpenditure of large capital, or the union of large numbers, that is not carried on by
19
Carden v. Arkoma Associates, 494 U.S. 185, 197 (1990) ("special treatment for corporations."). A
thorough discussion of diversity jurisdiction corporate "citizenship" is beyond the scope ofthis testimony.
In short, Louisville Railroad Co. v. Letson, 43 US (2 How.) 497, 557-558 (1844), decreed that a corporation"is to be deemed" a citizen of the state of its creation. 43 U.S at 557-8. Nine years later, the Court
followed Letson but reiterated that "an artificial entity cannot be a citizen," and "State laws by combining
large masses of men under a corporate name, cannot repeal the Constitution." Marshall v. Baltimore andOhio Railroad Co., 57 U.S. (16 How.) 314, 327 (1853) (quotation and citation omitted). The Court soon
began simply to treat "a suit by Or against a corporation in its corporate name, as a suit by or against
citizens of the State which created the corporate body ...." Ohio and Mississippi Railroad Co. v. Wheeler,
66 U.S. 286, 296 (1861). The Court confined this doctrine to diversity jurisdiction, and it has never been
defended with enthusiasm for its soundness. See Carden, 494 U.S. 185. See also Frankfurter, Distributionof Judicial Power between United States and State Courts 13 CORN. L. Q. 499, 523 (1928).
20
ld.; Pembina Can. Silver Mining & Milling Co. v. Pennsylvania, 125 U. S. 181 (1888); Asbury
Hasp. v. Cass County, 326 U.S. 207 (1945). Note that an unrelated part of Paul was overruled by UnitedStates v. South-Eastern Underwriters Ass 'n, 322 U.S. 533 (1944).
2JBank ofAugusta, 38 U.S. at 587.
22 3
8 U.S. at 586-590.
23
But see McConnell, 540 U.S. at 257-258 (Scalia, J. dissenting); compare liggett, 288 U.S. at 548(Brandeis, J., dissenting) ("The prevalence ofthe corporation in America has led men ofthis generation toact, at times, as if the privilege of doing business in corporate fonn were inherent in the citizen; and has ledthem to accept the evils attendant upon the free and unrestricted use of the corporate mechanism as if theseevils were the inescapable price of civilized life, and, hence, to be borne with resignation.")182
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July 24, 2012

Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony of Jeffrey D. Clements, Free Speech For People
Page 13 of 15

corporations. It is not too much to say that the wealth and business of the country are to agreat extent controlled by them.,,24 Despite this recognition, the Court denied the claim ofcorporations to the privileges and immunities of citizenship, as a corporation is "a merecreation of local law.,,25
The Court - with exceptions during the substantive due process era characterized
by Lochner v. New York, 198 U.S. 45 (1905), overruled by Day-Brite Lighting Inc. v.
Missouri, 342 U.S. 421 (1952) - continued through most of the twentieth century to
distinguish between the rights of people and corporations. In Asbury Hospital, forexample, the Court, citing numerous cases and without dissent, rejected a Constitutional
challenge to a state law re~uiring corporations holding land suitable for farming to sell
the land within ten years. 2 Five years later, the Court again emphasized the "public
attributes" of corporations in turning aside corporate privacy claims:[C]orporations can claim no equality with individuals in the enjoyment of
a right to privacy. They are endowed with public attributes. They have acollective impact upon society, from which they derive the privilege ofacting as artificial entities.27
The Court has recognized, in a limited fashion, assertions of corporate rights
under the Fourth Amendment. 28 As the Court has observed, however, a corporation haslesser Fourth Amendment rights because:
Congress may exercise wide investigative power over them, analogous to thevisitorial power of the incorporating state, when their activities take place withinor affect interstate commerce. Correspondingly it has been settled that
corporations are not entitled to all of the constitutional protections which private
individuals have in these and related matters. 29
Accordingly, "it cannot be disputed that the mere creation of a corporation does notinvest it with all the liberties enjoyed by natural persons ....,,30
24
2S

26

Paul, 75 U.S. at 181-182
Id. at 181.
326 U.S. 207.

27

United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (citations omitted).
See infra. Part II; Carl Mayer, Personalizing the Impersonal: Corporations and the Bill ofRights,
41 Hastings LJ. 577, 664-667 (1990); GM Leasing Corp. v. United States, 429 U.S. 338, 353 (1977)
28(corporations have "some Fourth Amendment rights").
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186,204-205 (1946) (footnotes omitted).
30
First Nat. Bank ofBoston v. Bellotti, 435 U.S. 765, 823 (1978) (Rehnquist, J. dissenting) citing
United States v. White, 322 U.S. 694, 698-701 (1944). See also Northwestern Nat. Life Ins. Co. v. Riggs,
203 U.S. 243, 255 (1906) ("The liberty referred to in that [Fourteenth] Amendment is the liberty of natural,
not artificial, persons.")

29

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United States Senate Committee on the Judiciary
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July 24, 2012

Hearing on Constitutional Amendment Proposals to Overturnthe US Supreme Court's Citizens United Ruling
Testimony of Jeffrey D. Clements, Free Speech For People
Page 14 of 15

Justice Rehnquist closed his dissent in First Nat. Bank of Boston v. Bellotti, 435
U.S. 765 (1978), by saying "[I] regret now to see the Court reaping the seeds that it there
sowed [referring to the early corporate speech cases]. For in a democracy, the economic
is subordinate to the political, a lesson that our ancestors learned long ago, and that ourdescendants will undoubtedly have to relearn many years hence."
That day has come, and Congress and the States now are considering several
worthwhile initiatives to address the Court's egregious error in Citizens United - publicfunding of elections, stronger disclosure requirements, and shareholder and governancereform, among others. As with so many previous challen£es to democratic selfgovernment, however, Citizens United also requires a 28 Constitutional Amendment tocorrect the Court, restore republican democracy to the people, and allow Congress andthe States to regulate campaign spending.
A Constitutional Amendment to Defend Our Democracy
As discussed above, Citizens United presents two serious threats to our Republic:
the threat presented by a fabricated doctrine of corporate constitutional rights and thethreat presented by big money dominance of our elections. It is critical that we now use
our Article V powers under the US Constitution to enact an amendment or amendmentsthat will address both problems.
Of the 13 amendment bills currently pending in Congress, Free Speech For
People strongly endorses the following two bills:
H. J. Res. 88, introduced in the House by Rep. Jim McGovern (D-MA), and:The bicameral companion pair S.1. Res. 291H.1. Res. 86, introduced in the Senate
by Sen. Tom Udall (D-NM) and in the House by Rep. Betty Sutton (D-OH).

H.J. Res. 88 (McGovern) is the most effective amendment bill for addressing the
problem of the fabricated doctrine of corporate constitutional rights. First, it statesclearly that corporations do not have constitutional rights as if they were people, fully
refuting the claim to the contrary at the core of Citizens United. Second, it does so evenhandedly, applying equally to all corporations, be they for-profit, non-profit, orincorporated labor unions. Third, it already enjoys bi-partisan support, with the cosponsorship of Rep. Walter Jones (R-NC), along with dozens of Democratic co-sponsors.
It is one of only two amendments among the 13 pending bills that have bipartisan support
today.

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July 24, 2012

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Testimony of]effrey D. Clements, Free Speech For People
Page 15 of 15

S ...1. Res. 29 (Udall)/H.•T. Res. 86 (Sutton), a companion pair, would restore the authorityof Congress and the States to regulate campaign spending. This amendment would
effectively overturn the US Supreme Court's 1976 ruling in Buckley v. Valeo which
equated money with speech and struck down mandatory campaign spending limits passed
by Congress in the wake of the Watergate scandal. The Udall/Sutton amendment billwould allow Congress and the States to enact campaign spending limits, including limits
on independent expenditures, ending the corrupting influence of big money in ourpolitical process and ensuring that all Americans, regardless of their economic status, will
have an equal voice in our elections.
The attached grid provides a comparison of all of the pending amendment bills in
Congress and highlights further our reasons for endorsing the McGovern bill andUdall/Sutton bill. While it would be ideal to have the elements of both of these bills
combined into one amendment bill, it is important that, if they are to remain separate,they both advance forward to ensure the most comprehensive and effective response to
the threats posed to our democracy by Citizens United and related rulings.
Americans have amended the Constitution repeatedly to expand democratic
participation of people in elections. Most of the seventeen amendments that followed theten amendments of our Bill of Rights were adopted to eliminate barriers and strengthen
democracy for everyone.' Seven of our amendments overruled egregious rulings of theSupreme Court. We can and we must do that again to preserve our Republic and toprotect that basic American promise: government of, for, and by the people.

A comparison of Constitutional Amendment bills responding to Citizens United in the 112'" CongressFree Speech For People endorses H.J. Res. 88 (McGovern) and S.J. Res. 29 (Udall) / H.J. Res. 86 (Sutton).

Sill numher andprincipal sponsor

Ii! Restores
Has hiStates thatpartisan 1 corporations
authority ofcospon~ do not haveCongresssorship. 1 constitutionaland states torights.
limit campaign(Overturns
I spending by
Citizens United 1 corporations.

I

Bills relating to the claim "! Rep.
WalterI

incorpor~

ated labor
unions,non profits,
and for~profit(Overturns

corpora-part of Citizens

United.,nons
equally.

1m

I nla

IYES

NO

NO

nla

entirely.)

H. J. Res. 88: Rep.
Jim McGovern (O-MA)

TreatsI

Restoresauthority ofauthority ofCongress andCongress andstates to limit
campaign

states to limit

spending in all

categories.
(Overturns
Buckley on

RestoresIAddresses other matters(specified in cells below).

campaign
spending in somecategories.

! (Overturns parti of Buckley.'spending limits

I NO

I nla

YES

nla

nla

j YES

nfa

nla

185

INO

Bills relating to campaign finance'

I

I

S.l. Res. 29: Sen.
Tom Udall (D-NM)*H. J. Res. 86: Rep.
Betty Sutton (O-OH)*

NO
NO

NO

NO

S.l. Res. 35: Sen.
M.x Boucus (O-MT)
H. J. Res. 78: Rep.

NO

NO

YES

I YES

NO

NO

nla

NO
. _ •.•• _.

YES

j YES

NO

NO

nla

~;~

I NO
~.~a Edward:'..(l):MI2l...L __.•_...........

--~-~-------".~-~~."-""---*: Dotted lines between rows indicate companion hills across chambers.
Table compiled by Free Speech For People, 2366 Eastlake Ave. East, Suite 311, Seattle, WA 98102, 206-723-1941, contact@Jfreespeechforpeople.org
Page 1 of 2

A comparison of Constitutional Amendment bills responding to Citizens United in the 112'" CongressFree Speech For People endorses H.J. Res. 88 (McGovern) and S,J. Res. 29 (Udall) / H,J. Res. 86 (Sutton).

Bill number andprincipal sponsor

Has bi- \5t3tes thatpartisan I corporations
cospon- I do not havesorship. constitutionalrights.
(Overturns

Citizens Unitedentirely.)r.:-------~------H.J. Res. 92: Rep.
Keith Ellison (D-MN)
Res. 97: Rep.
John Yarmuth (D-KY)'fli.

\ Restores

TreatsRestoresincorporauthority ofCongress
ated labor
Congress andand states tounions,states to limit
limit campaign nonprofits, 1 campaign
spending by
and forspending in all
corporations.
profitcategories.
{Overturns
corpora~{Overturns
part of Citizens lions
Buckley on
United.}j equally.
spending limits

I authority of

NO

NO

YES

Rep.
WalterNO

NO

Restores[AddreSses other matters
authority of(specified in cells below).
Congress and,states to limit
campaign
1spending in some!
categories.
(Overturns partof Buckley.)I~rely.) _ _ _ _ _ _ _ _ "_ ~; _ _ _ ~_" _ _ _ _ ~ ____ _
NO
NO
nfa
nfa

YES

nfa

elections;• Establishes a national holiday forthe purpose of voting,
H.J. Res. 8: Rep_
Marcy Kaptur (D-OH)
H.l. Res. 72: Rep.
Kurt Schrader (D-OR)
Res. 100: Rep.
Dennis Kucinich (D-OHI

H:J:

NO

NO

NO

nfa

YES

nfa

nfa

NO

NO

NO

nfa

NO

YES

nfa

NO

NO

NO

nfa

YES**

nla

• Establishes mandatory full publicfunding of federal elections.

I

I
H.J. Res. 111: Rep.
Adam Schiff (D-CA)

NO

NO

NO

**: Applies only to federal elections;silent on state authority to limit
spending on state elections,
nfa

NO

YES

• Clarifies Congressional authority toenact full or partial public fundingof elections,*: Dotted lines between rows indicate companion bills across chambers.
Table compiled by Free Speech For People, 2366 Eastlake Ave. East, Suite 311, Seattle, WA 98102, 206- 723-1941, contact@freespeechforpeople.org
Page20f2

186

Jones
(R-NC)• Clarifies Congressional authority toenact mandatory public funding of

187
The Law Offices of Chris Heagarty, PLLC
13200 Strickland Road, Suite 114 # 299 Raleigh, North Carolina 27613-5212(919) 818-5324
&=$&

4(41

44k

Testimony ofHon. Chris Heagarty
Former N.C. State Representative
Former Executive Director, N.C. Center for Voter Education
Before the
Senate Hearing on Citizens United / Super PACs
July 24, 2012
My name is Chris Heagarty and I am a former member of the N.C. House ofRepresentatives and the former Executive Director of the North Carolina Center for Voter
Education. The N.C. Center for Voter Education is a non-partisan nonprofit organization, led
by former elected officials and civic activists, and made up of Republicans, Democrats, andunaffiliated voters who want to improve the quality and responsiveness of our government
and elections system. We were one of the architects of North Carolina's public campaign
financing program for our judges and constitutional officers, as well as our state's
nonpartisan voting guide and numerous important pieces of legislation promoting
transparency, disclosure, and openness in government.
My purpose today is to share with you my experience, and those of my fellow
legislators in North Carolina, as we found ourselves under attack by a campaign of several
hard-hitting, coordinated, negative attacks all funded through so called "independent
expenditures" and electioneering communications. Many established and legitimate
organizations, of all political philosophies, engage or have announced their intent to engage, in
independent advocacy efforts designed to promote their specific political viewpoint. To thosegroups, whether they are business groups or trade unions, advocates for second amendment
rights or reproductive rights, or wherever they are on the political spectrum, Constitutionalrights to political expression have long been recognized. It is not my intent to suggest any
restraint of these rights. I am here today to warn of blatant political electioneering that occurs
under the masquerade of legitimate issue advocacy and independent political expression.
Specifically, I would like to address political activity created by groups that are created withno other purpose but to influence elections and that purposefully conceal the identity of theirPage I of7

188
funders from the public, and the problems created by such anonymity. This type of activity
has been with us since before the Citizens United decision, but that decision by the Supreme
Court has opened a flood-gate of new money into these types of efforts and emboldened those
who might have previously been reluctant to engage in such tactics. We are on the brink of anew political arms race where cash, not principles, will determine the winners.
There are those that ask is money not just a tool to amplify speech, and is free and open
speech not what our government is founded upon? There are those that believe unregulated
political speech is a noble end, one that promotes rational discourse and enlightened debate.
There are also those who believe in the tooth fairy. That is to say, we need open and honest
debate in our political system. But the current system of how our campaigns communicate
with voters is not open and it is becoming increasingly less honest. The side with more money
has more speech and drowns out the other side. Thus, debate is not open. Nor is the debate
honest, not merely as to the claims being stated but even as to who is actually making theclaims printed or broadcast in many political advertisements.
Many voters believe, no matter how incorrectly, that candidates and interest groups
simply cannot say things about us that are untrue. They believe that there is some legal
protection out there to save us from false and misleading advertising and that if these attacks
aren't true then maligned candidates can just sue and restore justice. This is simply not true as
our First Amendment protections on political speech create exemptions for otherwise
defamatory language. The price we pay to protect our citizenry from a government that canpunish you for what you say is that we must tolerate malicious, misleading, or untrue true
political speech when it occurs and hope that voters can be filter through it to find the truth.
While extreme legal protections have been reserved to guard against the possibility that
legitimate political expression might be chilled, recent court rulings protect and may actuallyencourage more uncivil political discourse, defamatory communications, and voter
disinformation by affording a level of anonymity to entities that want to influence elections.
Let us be clear: you can lie about a candidate without any legal sanction. The only defense
most victims of willful and malicious lying had was that the liar could be held accountable andjudged by the voters once the lie was exposed. However, when the liar is anonymous, eventhis protection evaporates. This legally protected anonymity creates a barrier to accountability
and transparency so that voters are not informed of the identity of political actors and are
therefore unaware of the possible bias and motivations of those funding destructive politicalcommunications. Much as the shield of anonymity empowers rogue bloggers to slander andallows cruel teenagers to torment each other on social media sites, many of these"independent" political actors can launch defamatory political attacks behind the shield ofartificial corporations and shell organizations with no purpose other than to influenceelections, and escape any judgment or accountability for their actions.

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A powerful deterrent against untrue advertising is that voters find it distasteful andthose who engage in it may incur the wrath of voters who will not tolerate being lied to. That
deterrent, however, is effectively neutralized when voters do not know who is responsible forinaccurate information, such as when political actors can act from behind a curtain ofanonymity and not be held accountable for their claims.
Likewise, while many of us who serve, or who have served, in public office know that
we will have to work with those on the other side of the aisle and most of us try to follow somecode of decorum and respect for our colleagues, no such honor or code exists when it comes toelectioneering by many of these so-called "independent expenditure" entities, and their teamsof hired-gun campaign consultants, who often jet in from out of state, launch their attacks, anddisappear again and don't have to live with the consequences of their actions. Ads that would
be abhorrent to many of those that serve, or who want to serve, in the legislature are often run
without the knowledge or consent of those candidates. Candidates that might reject suchtactics themselves may nevertheless find themselves the beneficiaries of independent
expenditure efforts. Or worse, they might be held accountable and suffer political damages for
attacks which they never would have condoned.
The good news is that a number of states have had the foresight to enact very strong
disclosure laws in the wake of Citizens United decision. The bad news is that the direction of
the United States Supreme Court threatens those reasonable steps, overturning state solutions
and even recently going so far as to tell states that what appears to be the appearance ofimpropriety and corruption in Montana according to the Montana Supreme Court, simply
isn't. 1his leaves the states and our local government unprepared for the tens or hundreds ofmillions that may be spent influencing voters, with few options for requiring transparency or
accountability.
In 2010, in my state, many different interests all carne together, some of them from outof state, to overthrow our House and Senate, giving the Republican Party control for the firsttime since the 1800's. However, despite numerous actors ultimately involved, primary credit
should be given to one individual, who envisioned, organized, and funded the electioneering
infrastructure that made this all possible. Funding a campaign that fell outside most of ourcampaign finance laws, this former member of our State House, who was the heir to hisfather's wealth and fortunes, created a web of organizations, from charitable non-profits to501(c)4 advocacy groups, 527 electioneering organizations and corporate donors to overturnthe legislature on the cusp of our decennial redistricting.

Now, if you're a Republican, you likely don't see the Republican takeover of bothlegislative chambers as a bad thing. Why would you? A healthy turnover can be a good thing.
What you should know is that, before the independent expenditure campaigns of our 2010
Page 3 of7

190elections, there was a test-run, where this same individual exploited "issue advertising"campaigns against his fellow Republicans.
This same individual, just a few years before, decided that many of the state's seniorRepublican legislators were not "pure" enough, and purged them in nasty primaries filledwith attack ads that exploited the margins of our campaign finance laws and sent home those
Republican legislators who did not comport to the model of what he thought a Republican
legislator should be. Who should say what that model Republican legislator is? The
Republican voters who have loyally supported home-town civic leaders for several tenns thathave worked hard for their districts? Or a Raleigh millionaire and fonner politician in a newrole, as puppet-master, recruiting his own loyal cronies and politically assassinating those,
Democrats and Republicans, who disagree with his narrow vision of North Carolina's future?
In defense of this purge, you might be told that it was the voters in the districts of theseousted Republicans, not anyone person, who turned these Republican incumbents out of
office. You might be told that it was an infonned and motivated electorate who desired achange and who simply expressed their preferences at the ballot box. Yet, these same votersheld these ousted lawmakers in high regards, until the independent attacks came, distorting
the incumbents' voting records and painting them in a defamatory light. Before the attacks,these were respected lawmakers. After the attacks they were seen as pariahs within their own
party. Why did these voters tum on their fonner representatives? They were largely
influenced by the "infonnation" sent to them by the independent expenditure groups and527's which, while shockingly negative, was accepted as factual by many voters because thesesame voters finnly believe that that these groups "couldn't say it if it wasn't true."
One man may not be able to buy a legislature, but one man, if he is a millionaire andhas the financial means of a large corporation behind him to do so, can be the catalyst that set
in motion a huge influx of secret money, corporate money, and out of state money, that sent
into retirement dozens of North Carolina House and Senate members.
Let me state for the record that there is no proof of any illegal activity that occurred inany of this electioneering. Let me also state that the rights to contribute to candidates and to
express one's viewpoints are clearly protected by our Constitution. Now it seems these rights
have been extended to artificial corporate constructs and not simply the citizenry. Our UnitedStates Supreme Court has equated political spending with political speech and zealously
protects the rights of individuals, and now corporations, to political expression. Though thismay seem to create an inequality of political influence and political worth from citizen to
citizen, it is the law. While I may not like the political choices made by millionaire Art Pope in
how he has chosen to spend his money, and his corporation's money, and the tactics he andPage 4 of7

191
his agents have chosen to use as they spend this money, our courts recognize and uphold his
right to spend it.
However our courts have also recognized the compelling state interest served by thedisclosure of political spending and transparency in attempts to influence our elections. It ishere that I think North Carolina's voters were denied and where I believe the real wrongdoing was committed in these elections. Here is how Citizens United foils the few protections
that were left to provide some measure of transparency in elections and some way for voters tohold political actors accountable for their communications.
Let me explain how this worked:
Art Pope, the millionaire and former state house member, could contribute to thecampaigns of candidates he supported just like any citizen under our state law. Individuals
are limited to donations of no more than $4,000 per election cycle per candidate. In my race, hegave $3,000 to my opponent, and found three other family members to also give $3,000, for a
total of $12,000 to my opponent.
However, his influence did not stop there. Using his family'S charitable foundation he
was able to fund organizations he created that would conduct political research, on politicalissues and messages, and share it with candidates he supported by injecting it into the publicdomain, thereby avoiding any in-kind contribution reporting or coordination restrictions.
Whether posting the information behind links to seemingly outdated articles or other lowtraffic areas of an organization's website is truly injecting into the public domain is a matter of
debate but one which went unchallenged. Candidate training seminars and conferences onpolitical messaging also benefitted like-minded candidates. Though valuable, this type ofactivity was of indirect aid to the candidates he supported, and is duplicated by otherorganizations.
More significant was the creation of various 527 electioneering organizations that werecreated expressly for the purpose of influencing that year's legislative elections, but whichwere described as promoting issues of importance to voters. One of the newly createdorganizations, Real Jobs NC, Inc., spent over $45,000 against me by running negative and, inseveral cases, factually inaccurate attacks by direct maiL Another group, the Civitas Action
organization, added another $25,000 in reported spending against me. A third group, the state
chapter of Americans for Prosperity, spent another $21,000 in support of my opponent. The
first of these groups was created by Pope, the second spun out of a charitable non-profit
created and funded by Pope and was itself funded by Pope, and the third was the state chapter
of a national organization, which received significant funding by Pope. The heavy funding

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that three organizations received carne from Variety Wholesalers, the corporation that owned
the Pope family's chain of discount retail stores.
Between Art Pope's personal contributions, family contributions, and the corporate
contributions from his family business, over $92,000, that can be tracked, was spent against me
in my election by Pope. Studies tracking his spending reveal at least $2.2 million, directly
attributable to him and his corporation, that was spent on directly influencing our stateelections. This does not account for any influence spent on polling, message research, andcandidate training provided through his charitable enterprises. Nor does it include anextensive amount of additional private and corporate money that was solicited by Pope's
agents and funneled through these organizations.
The Democratic leadership never saw it corning. These millions of dollars did notappear in any of the candidate committees of the Republican leadership, other than Pope's
personal contributions. Only his personal contributions appeared in the campaign disclosuresof the state Republican Party. None of the millions appeared in the regularly disclosed
political action committee reports of any business or industry groups. This was an off-bookcornucopia of political funding that was purposefully raised and distributed through a
network of shell organizations with no other purpose but to influence election outcomes. But
because the method for influencing these elections was to link candidates to unpopular,
sometimes inaccurate or just untrue, positions on issues, this spending escaped the disclosure
expected of other political actors in our state.
Couldn't these attacks be refuted? Couldn't these attempts be matched? Only if theattacked candidates had the resources to defend against them, and few had the financial ability
equal to what had been aggregated behind these multiple political vehicles. What could acandidate do when he or she was attacked, not just by a negative claim, a distorted vote, or an
allegation of wrong-doing but with factually untrue information? Who is accountable? Does
the new corporate entity which now directs political action and spends millions of dollars to
express it own political opinions, whatever opinions that corporation might have, have any
accountability? Can it be sued? Can there be any recovery? Or is it simply a legal construct, ashield that protects the true funders of the speech from any liability or civil action, even in the
few cases where negative advertising does cross the line into actual defamation?
Attacks in direct mail used against me claimed I had voted for a billion dollars in porkbarrel spending as part of the 2009 state budget. That could be an effective attack against me
and my voting record, and one voters might have a legitimate need to know. Except that I
wasn't even in the legislature during the 2009 budget session and could not have voted on thebudget, yea or no, because I wasn't a state representative yet. How do I respond to thatwithout the campaign war chest of these assembled corporations and millionaires? Voters had
Page 6 of7

193
access to disclosure legends, sometimes printed upside down, that told them that these attacks
were funded by groups with names like Real Jobs, NC. Our state law says that 527 groups
must go a step farther and further identify significant funders of these kinds of electioneering
attacks. Yet under Citizens United, with corporations freely spending on direct advocacy, andcorporations being created merely for the purpose of direct advocacy, the "funders" were
often newly created organizations with little or nothing to identify them, with names such as"ReaIChange.Org" or other 527 organizations, non-profits, or shell groups. The web of moneyfrom a funder through one organization through another and then through another became socomplex that I was once approached shortly after my defeat by a donor to one of these groups,
a very significant donor, who shared his regret that I had lost my race. When I asked him
about his organization's funding of attacks against me he expressed genuine surprise anddisbelief, claiming that his organization wasn't even active in state elections. Only when I
produced the IRS records months after the elections did I receive an apology and a statementthat even he did not that this is how his money was being spent.
In closing, money has and always will be part of our elections process so long as moneyis necessary to communicate with voters. However, voters are entitled to know who is paying
to influence their elections so that they can make their own independent and informed choices
about whether to accept or reject the political messages that bombard them. Clearly votes
need to be educated to learn that, yes, political organizations can, and do, often say things thatare not true, and are allowed to get away with it. Yet, the ability of states and local
governments to enact and enforce even the most basic disclosure laws that promotetransparency and accountability in electioneering are threatened by recent rulings by ourUnited States Supreme Court. In North Carolina we thought we had adequate protections inplace that would give voters the information they needed to scrutinize and evaluate thepolitical mailings they received. We thought we had done a good job of requiring the types of
disclosure needed to reveal who was behind the electioneering in these types of politicalcommunication. As you have seen, we were wrong. As you move forward, I hope you willkeep in mind the kinds of electioneering that took place in North Carolina and work for asolution that allows states to protect and preserve the transparency and accountability in theirown election laws.

Page 7 of7

194

RICK HUBBARD - MBA, JD

July 13, 2012
Senator Patrick J, Leahy
Chairman, U.S. Senate Committee on the Judiciary
437 Russell Senate Bldg
United States Senate
Washington, DC 20510
Senator Dick Durbin
US Senate Committee on the Judiciary
Chairman, Subcommittee on the Constitution, Civil Rights and Human Rights
224 Dirksen Senate Office Building
Washington, DC 20510
RE:
Testimony of Rick Hubbard of South Burlington, Vermont for the record at the July 17'h,2012 Hearing on Citizens United Constitutional Amendment Proposals.
Honorable Senators,
I submit this testimony on behalf of myself, on behalf of tens of thousands of Vermonters, and on behalfof tens of millions of like minded U.S citizens.
As you hold hearings on constitutional amendment proposals related to Citizens United we urge you NOT
to look at the Citizens United issue narrowly.
Much evidence in our recent political history documents that our entire political process today - the way
we conduct our elections, the way we finance candidates, and the way Congress and other branches of ourgovernment enact law. regulation and policy - does not. on balance. serve the best mediwn and long tenninterests of the majority of U.S. citizens. Rather than engage here in the involved task of documenting thisevidence, we ask you to take judicial notice of it.
Thus we urge you to consider very broadly and in depth the root causes which underlie this result, topropose an amendment or amendments to our U.S. Constitution which will rectify these problems, tosubmit them for further discussion and approval by two-thirds of both houses of Congress and to thenfurther submit them for ratification by the legislatures of three fourths of the several states as set forthin Article V of said Constitution.
I am a seventy year old native Vermonter with an excellent graduate level education in two disciplines;
law, and business and economics. Though now retired, the majority of my professional life has been spentworking as an attorney, though formerly I worked as an economic consultant. I have a keen lifetime
interest in public policy and in making our political system work effectively.

195

In this latter regard, this past winter I organized an effort to collect petitions in my city of South
Burlington in support of statewide efforts which resulted in voters of 64 Vermont towns and cities passing
resolutions urging our Vermont congressional delegation and the U.S. Congress to propose legislative or
congressional action to address the issues raised by Citizens United.
In my city of South Burlington alone, the consensus of the 43 petition gatherers of almost 1,000 South
Burlington signatures is that a proportion even greater than 9 out of every 10 persons approached, wanted
to sign. This percentage of support is huge and it crosses all ideological lines. Similar results werereported in practically every Vermont community that addressed this issue. All of us are affected, whether
we are conservative, moderate, liberal or progressive.

In my personal experience, I've never seen an issue resonate more with voters.
In addition I organized a gathering on Thursday, Feb. 23,d of this year in which a wide variety of
individuals and organizations from around Vermont met in South Burlington's City Hall. There, morethan 50 of us from many Vermont organizations, leaders from many Vermont towns, concerned citizens
and Vermont State Directors for both Senator Leahy and Rep. Welch, discussed the components of acomplete fix of the widely perceived problem that, nationally, our democratic process fails citizens bytipping law, regulation and policy in ways that often benefit the interests of wealthy campaign
contributors and members of Congress rather than the interests of most Americans.
Discussion participants listed the following as among the major components of a complete fix, all ofwhich together would likely result in a democratic process that much better reflects the overall interests of
the American people:
•

•
•
•

Complete public finanCing of our federal elections, crafted in a way that allows virtually all U.S.
citizens to have a meaningful say in who qualifies to access finances to spread their message more
broadly.
Much shorter federal election periods.
Free and equal access to our public airways for candidates during the election period.
A process by which voting citizens exert the primary influence on elcction outcomes, which
requires restraining the influence of corporations and all other outside organizations.

Participants also concluded that reform efforts should not be side-tracked by partial, incomplete solutions
which might result in an improvement without resolving the major underlying problems.
The 2002 McCain-Feingold law is an example of this. As you know, it attempted to limit the influence ofoutside ~'soft money" from organizations as well as "issue advocacy ads" during e1ection periods. During
the two-year 2000 Federal Election Cycle, this "soft money" amounted to only about 17-18% of the total$2.9 billion election cost.
But before, during, and after McCain Feingold, evidence suggests that the reform offered by this law
failed to substantially correct the underlying problems.
The recent Citizens United decision from our U.S. Supreme Court effectively voided most of McCainFeingold, thus re-opening the floodgates for outside money to again hugely influence campaigns in evenlarger amounts. In reaching its conclusions our Supreme Court focused on the right of citizens to be able
to hear political speech from others without distinguishing the opposite - that with enough money, awealthy person may, in effect, purchase a much bigger megaphone than most of the rest of us, to amplifY

196

their speech and repeat it over and over in the national media, effectively overwhelming and drowning out
our free speech, i.e. the speech of most of the rest of us.

Across our country, millions of U.S. citizens perceive this result as wrong, unfair and extremely damaging
to our country's democracy.
Tellingly, of those participating at our February 23 rd gathering, not a single person believed that a
constitutional amendment simply reversing the effects of Citizens United would resolve the broader
underlying problems. We support a solution that may include this, but to be effective in resolving theissues negatively affecting our current democracy and political process, any amendment or amendments
must be much broader and more comprehensive.
This widely perceived issue of our damaged democratic process underlies, and can connect, widelydifferent groups in America today:• in both red states and in blue states• in both the Tea-Party and Occupy Wall Street

It also can connect conservatives, moderates, liberals, progressives and independents.
Although these disparate groups cannot yet agree on exactly what an appropriate fix for this issue is, there
is widespread agreement that our current political process has gone terribly wrong, and that it needs to bebroadly and systematically addressed and that effective solutions are required.
For all of the above reasons, I and millions of Americans urge you to discuss and propose an amendment
or amendments to resolve this issue in a broad and comprehensive manner.
We are aware that the way we currently finance and conduct our political process makes it easier forincumbents to remain in office and continues to allow wealthy contributors unequal extra access resulting
in laws, regulations and policies to often serve their interests rather than the interests of the broader
public.
This in turn moves, in the aggregate, many hundreds of billions of dollars out of our pockets and into theirpockets. In comparison, the cost to prevent this result by reforming and publically financing our politicalsystem is but a tiny fraction of these amounts.
We are also aware that incumbent members of Congress who benefit from this current system, as well as
those financial contributors who receive large financial benefits from this current system, all have great
incentive to oppose broad reform, to offer partial reforms that will not be effective in a broad sense, todownplay the need for broad reform, and to denigrate and discredit those who support broad reform.
We ask you to rise above all this and to assist in reforming our democracy and its political processes in amanner that will serve the interests of most U.S. citizens in future generations.
We realize that this will take time, but we will be watching to see if such broad reform actually happens in
the months and years abead.
Should Congress fail to act within what most citizens regard as a reasonable time, you are certainly aware,
as we the people are, that Article V provides us with a way to circumvent Congress.

197

As you know, our forefathers as representatives of the thirteen united States of America, on July 4th of1776 chose to declare our Independence from Great Britain when they believed that the King of GreatBritain was placing his interests and the interests of his wealthy backers ahead of the interests ofa
majority of those inhabiting our original American colonies.
As you also know, because of this historical awareness, in creating our U.S. Constitution as signed on
September 17th 1787, our founding fathers realized that there might again come a day when citizens
would widely perceive that our elected Senators and Representatives in Congress, instead of acting in the
broad public interest, were often acting in ways that primarily benefitted themselves and their wealthy
backers. Thus our founders included in Article V, a second way to amend our U.S. Constitution.
Should Congress fail to act, we the people can (and we shall) appeal in accordance with Article V directly
to the legislatures of two thirds of the several states to call for a convention for proposing amendments,
which, shall be valid to all intents and purposes, as part of our Constitution, when ratified by thelegislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or
the other mode of ratification may be proposed by the Congress;
This second way to amend our Constitution has, as you are well aware, never been used to date. It would
be terribly controversial and would undoubtedly take many years and great effort by U.S. citizens toeffect.
It is for this reason we urge that Congress preempt such efforts and propose broad and comprehensive
amendments to our U.S. Constitution which will effectively achieve these needed reforms and submit
these amendments to the states for ratification.

In closing and on a personal note, I wish you to know that I think of myself as a rational person, inclined
to reach opinions only after considering a wide variety of evidence and argument. If I, along with millions
of other U.S. citizens, can reach the conclusions expressed in this testimony, I'm equally convinced thatwith time and much more discussion, effort and debate, tens of millions of additional U.S. citizens will
join us.
While I am prepared, should Congress fail to act, to expend considerable effort working with others toorganize these tens of millions of U.S. citizens to appeal directly to the legislatures of two thirds of ourstates to call for a convention for proposing amendments, I'm now age seventy and would rather spend
my retirement years focused on more mundane matters.
Thank you Senators for convening this hearing and for considering and entering into the record thistestimony.

Respectfully,

Rick Hubbard
Rick Hubbard

198

A PROPOSAL TO CONVENE A
SERIES OF "CITIZEN CONVENTIONS"FOR PROPOSING AMENDMENTS
TO THE CONSTITUTIONSUBMISSION OF
LAWRENCE LESSIGROY L. FuRMAN PROFESSOROF LAW AND LEADERSHIPHARVARD LAW SCHOOLSENATE JUDICIARY COMMITTEE,SUBCOMMITTEE ON
THE CONSTITUTION, CIVIL RIGHTS AND HUMAN
RIGHTSHEARING ON"TAKING BACK OUR DEMOCRACY:RESPONDING TO CITIZENS UNITEDAND THERISE OF SUPER PACs."JULY 24, 2012
As I have argued in my submission to this Committee today,
the challenge for this Congress is both to identify the right reforms
that our Constitution needs, and to do so in a manner that mightearn the confidence of a skeptical public. Any process controlled
exclusively by Congress, or its delegates, would not, in my view,earn that confidence. Too cynical are we to believe that a process
this Congress itself controls is one that could rightly reform thisCongress.
Instead, I would propose that Congress build upon a procedurethat Professor James Fishkin of Stanford has developed - "deliberative polling" - to convene a series of citizen conventions, toidentify the amendments, if any, that this Congress should consider. These "citizen conventions" would have no legal authority.
But if conducted well, they could provide critical persuasive
authority to a skeptical public about what reforms are needed.

199"Deliberative polling" ties the representativeness of wellconducted polls with an opportunity for participants to deliberate in
an informed environment about the questions at issue. A representative sample of the relevant public is identified and then gathered
in a single place to deliberate, both in small groups and as a whole.
The participants are given carefully balanced materials that present
the issues in a way that they understand and can deliberate about.
And the process produces a mature and stable view about the issues
presented. More than twenty such polls have been conducted in
the United States and abroad, on topics ranging from the future of
the European Union to technical questions about utility regulationin Texas. 1

In this context, I would propose that "citizen conventions" beconstituted as a kind of deliberative poll. Three hundred citizens,
perhaps from specific regions of the nation, would be randomly
selected. They would be given materials that fairly describe the nature of the perceived problem, and then gather in a single location
to deliberate about that problem, and a range of proposed solutions. These conventions would be advisory to Congress, or perhaps to this Committee, but they would be framed by rules to assure that they are constituted properly.
Those rules should conform to the following principles:

1. Delegates should be selected randomly and proportionately. For
these conventions to earn the trust of the American people,
they must be constituted outside of the ordinary process ofpolitics. Congress should not populate these conventions,either itself or through its delegates. Professional politicians
should not populate these conventions, either themselves,or through the people they help to elect. Instead, like a jury,
a random and proportionate selection of citizens should begathered to deliberate about the reforms that are necessary.

1 See http://bit.ly/LHuME5.

2

200
2. To assure that a random selection could afford to participate, thelaw must secure to the delegates certain privileges. Delegatesshould be paid from the Treasury at a rate that equals 150%of their current income,2 capped at some reasonable level;
their expenses to attend the convention, including additional home-care expenses, should be provided as well; thelaw should secure protection for the jobs those delegatesmust leave, by compensating employers to save the jobs ofthe delegates. These privileges need to be generous enoughto make it possible for a random selection to participate.
But like the draft to serve in the military, the excuses forbeing exempted from this service should be few and stricdy
policed.

3. These citizen conventions should be conducted as a "deliberativepoll." The procedures for constituting these conventions

should form them on the model of Fishkin's "deliberative
polling." That system requires a careful process for selecting
the material that the delegates will be exposed to, and toassure the delegates come to understand the substance ofthe materials, and given a chance to deliberate about them.
This process can be open, and observed by the general public. But the delegates themselves should be sequesteredfrom other individuals during the deliberation. The only
source of influence that should be permitted is the influence of one delegate on another.
4. The results of these citizen conventions should be transmitted toCongress, and Congress should vote on whether to adopt the
proposals agreed upon. For the process to be meaningful,delegates must believe their work will have consequence.
The rules should therefore require that Congress to debate
the proposals that were agreed upon by the citizen conventions, and in a roll call vote, adopt them or not through a
resolution. The process should be completed by July, 2014,
to give the political process time to digest the results. The
vote on the resolution should be conducted before thatelection.

2 T~e disruption of service, especially for modest earners, justifies a premium for

servlce.

3

201
There is precedent both across the world and within our own
tradition for this mode of Jortition to decide important policyquestions.3 Our judicial system in some states gives just a dozen
citizens the power to determine the life of a convicted murderer.
Our tradition also secures, through the grand jury, citizens participating in the decision whether to prosecute or not.
Likewise, Canada to this day has a process by which citizens
are randomly selected to serve on "citizen assemblies" to advise thegovernment about policy proposals. And Iceland has just completed an extraordinarily ambitious process by which citizens participated to enable the drafting ofIceland's first constitution.
Such processes work well when citizens are given the information they need to understand the problem, and an opportunity todeliberate about alternative solutions. They work better than theways in which we currently elicit views from citizens - throughpolling, or focus groups, or even elections - because in thosecases, there is no guarantee the citizen knows anything. But withsortition properly conducted, the citizens are given a chance to understand the issue before they give their views about how best to
respond.
In the face of the extraordinary lack of confidence that Americans have in their government, it is critical that Congress thinkcreatively about ways to rekindle participation and confidence.
Such creativity will often generate new ideas. It will sometimes
remind us of the value in old ideas.
Turning to the People to resolve fundamental questions of governance is as old in our Republic as the Republic itself. Indeed, as
Professor Akhil Amar reminds US,4 ours was the ftrst constitutionof a nation in the history of man to be adopted by ratification by
the people in convention. This Congress should feed that tradition,
by giving "the People" another meaningful and informed way toparticipate in this, the most urgent problem this government faces:
Restoring the faith of the governed in their government.

3 See Oliver Dowlen,

Sorted: Civic Lotteries and the FutureofPublic Participation (2008), http://www.masslbp.com/publications.php.

4

America's Constitution (2005).

4

202....\~ END CORPORATE RULE. LEGALIZE DEMOCRACY.

MOVE TO AMENDFounding Partners
Alliance for DemDcracy
American Friends Service
Committee - North East Ohio
Block Agenda Report
Center for Media and
Democracy
Democrocy Unlimited
Independent Progressive
Politics Network

July 18.2012
Sen. Patrick J. Leahy
U.S. Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510
Sen. Dick Durbin
U.S. Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights and Human RighlS
224 Dirksen Senate Office Building
Washington, DC 20510

Uberty Tree Foundation

National Lawyers Guild
No MDre Stolen Elections!
Program on Corporations Law
and Democracy

RE:

Senate judiciary Committee
Subcommittee on the Constitution, Civil Rights and Human Rights
Move To Amend's Written Testimony for the "Responding to Citizens
United and the Rise of Super PACs" Subcommittee Hearing, July 24.
2012

Progressille Democrats ofDear Senator Leahy and Senator Durbin:

America

Rec/aim Democracy

We are heartened that Senate Subcommittee on the Constitution, Civil

Ultimate Civics

HATlOHAl EXECUTIVECOMMIITEE

Rights. and Human Rights is holding these hearings to examine pending
constitutional proposals to remedy the Supreme Court's 2010 Citizens United

Ashley Sandersae., Manski

decision. It is not possible to overstate the existential threat posed to our smallDavid LeeDavid Cobb
Egberto Willies
George Friday
Jerome Scott"'d"/small "r" democratic!republican fonn of goyemment by that odiousdecision. Thank you for ha~ing the courage to take the first necessary steps

Kaitlin Sapoci~Belknap

Laura Bonham
Nancy Price
Stephen Justino

towards overturning it.
As you know, the Supreme Court's Citizens United v. FEe decision in
January 2010 expanded constitutional First Amendment speech rights for

End Corporate Rule • Legalize Democracy • MoveToAmend.org(707) 269-0984 • info@MoveToAmend.org

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corporations and reinforced the fiction that corporations have inalienable rights under the U.S,
Constitution. With that decision, the Supreme Court opened the tloodgates to corporate andsecret money in our elections. Already in 2012 outside spending is double what it was in therecord-breaking 2008 elections and nearly all oftha! money has come from groups that do notdisclose their donors.

In granting corporations the inalienable constitutional right to spend unlimited money toinfluence elections, the Supreme Court has given powerful special interests undue influence inthe democratic process, and that deluge of corporate cash, when added to obscenely large
independent expenditures from tbe extremely wealthy, is drowning out the voices of ordinary
citizens.
We, at Move to Amend, are concerned about what we see as a growing Wasbington
bandwagon to address only the campaign finance loopholes created by the Citizens United
decision, and not the problem oC'corporate personhood," which is equally destructive to our
democracy.
We understand that, as significant as they are, the problem posed to our "small d"democracy by unlimited corporate spending in our electoral process is not the "root cause" of the
problem. The torrent of corporate spending unleashed by Citizens United is just a symptom of
the two fatal diseases aftlicting our democracy - the specious. Supreme Court-created doctrinesof "Corporate Personhood" and "Money as Speech." For any proposed constitutional
amendment to be effective, it must address both of those root-causes.
For those of you on the Subcommittee who do not know us, Move to Amend is a nationwide coalition of hundreds of organizations, and hundreds of thousands of individuals.
connnitted to social and economic justice, and building a vibrant democracy that is genuinely

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July 18, 2012

p.3
accountable to the people, not corporate interests. We are dedicated to promoting an amendment
to the U.S. Constitution that says two things, clearly and unequivocally: I) that inalienable rights

recognized under the constitution belong to human beings, only; and, 2) that money is not speech
and tbat, thus. regUlating political contributions, and political expenditures, is not equivalent toregulating political speech.
Move to Amend has drafted a proposed constitutional amendment - "the Move to Amend
amendment" • which satisfies those requirements. It reads:
Section 1 [A corporation is not a person and can be regulated)
The rights protected by the Constitution of the United States are the rights ofnatural persons only.
Artificial entities, such as corporations, limited liability companies, and otherentities, established by the laws of any State, the United States, or any foreignstate shall have no rights under this Constitution and are subject to regulation by
the People, through Federal, State, or local law.
The privileges of artificial entities shall he detennined by the People, throughFederal, State, or local law, and shall not be construed to be inherent or
inalienable.
Section 2 [MoDey i. not speech and can be regulated)Federal, State and local
govenunent shall regulate, limit, or prohibit contributions and expenditures,
including a candidate's own contributions and expenditures, for the purpose of
influencing in any way the election of any candidate for public office or any ballot
measure.
Federal, State and local government shall require that any pennissible
contributions and e.xpenditures be publicly disclosed.
The judiciary shall not construe the spending of money to influence ejections tobe speech under the First Amendment.
Section 3
Nothing contained in this amendment shall be construed to abridge the freedom of
the press.

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July 18, 2012
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Our proposed amendment is unique in that it has been forged in the crucible of nearly 20
years of movement building. grassroots organizing. and legal research.
As it relates to the issue of "corporate constitutional rights." the Move to Amend
amendment is based on a simple premise - that inalienable rights guaranteed under theConstitution belong to human beings, only. NO exceptions. NO loopholes. We recognize theobvious - that human beings create artificial legal entities such as corporations, and labor
unions, and non-profit issue advocacy groups, and that those artificial legal entities only need,and should only have, those "legal rights" that we, collectively, decide that they should have.
For example, artificial legal entities. such as corporations, need legal status in order to dobusiness. They need to be able to enter into binding contracts, and to sue and be sued. So, we,the people, acting as our government, give them those "legal rights" when states pass laws
governing incorporation. In that regard, Move to Amend's position is not extreme. Instead, ourposition - that corporations are only entitled to those legal rights granted by statute - was amatter of well-settled law from the founding of this country until into the 20th Century. For
example, in Trustees ofDartmolllh College v. Woodward, 17 U.S. 518, 636 (1819), ChiefJusticeMarshall explained that a corporation is a "mere creature oftaw ., . [which possess] only those
properties which the charter of its creation confers upon it. .." Furthermore, in Bank of Augusta
v. Earle. 38 U.S. 519 (1839), the Court rejected a claim that a corporation was protected by thePrivileges and Immunities Clause, because "[t]he only rights [the corporation] can claim are therights which are given to it [by the charter], and not the rights which belong to its members as
citizens ofa state.... " Ed, at 587. Likewise, in Hale v. Henkel, 201 U.S. 43, 74-75 (1906). theSupreme Court stated. that a "corporation is a creature of the state ... incorporated for the
benefit of the public. It receives certain special privileges and franchises, and holds them subject

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July 18,2012
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to the laws of the state and the limitations of its charter.... Its rights to act as a corporation are
only preserved to it so long as it obeys the laws of its creation ..."
And it was not just the judiciary that held a healthy skepticism about the nature of therelationship between corporations and their human creators. It is safe to say that there is a threadof anti-corporatism that runs through the fabric of our nation. It is bred into our political DNA.
What was the "Boston Tea Party" other than an act of anti -corporate vandalism against thelargest, most powerful. multi-national corporation of its day - the British East India Company?
The founding generation, who knew what corporations were, and who had just fought a
revolutionary war to throw off the power of not just the King, but also the King's cro"TI
corporations, did not mention corporations in the documents that established our government the Constitution and the Bill of Rights. That should tell us everything that we need to know
about their "original intent." It should be clear to all that the founders did not intend
corporations to play i!!!Y meaningful role in our political system.
Furthermore, throughout our history, presidents have warned us of the threat posed byunbridled corporate power. In 1816, Thomas Jefferson said "I hope we shall crush in its infancy
the aristocracy of our moneyed corporations which dare already to challenge our government in atrial of strength and bid defiance of our laws." In 1817, James Madison said "The power of all
corporations ought to be limited in this respect. The growing wealth acquired by them never fails
to be a source of abuses." In 1910, Teddy Roosevelt said "The great corporations which we havegro"TI to speak of rather loosely as trusts are the creatures of the State, and the State not only has
the right to control them, but it is duty bound to control them wherever the need of such control
is shown." In 1936, Franklin Delano Roosevelt advised the nation that "We struggle with oldenemies of peace - business and financial monopoly, speculation, reckless banking, class207
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July 18, 2012
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antagonism, sectionalism, war:' And, in 1959, D\\ight D. Eisenhower warned "We must guard
against the acquisition of unwarranted influence, whether sought or unsought, by the militaryindustrial complex."
In light of that truly American history, it is clear to us that we, at Move to Amend, are on
the right side of the law, and the right side of American history, when it comes to ourunwavering belief that inalienable constitutional rights belong to hurnan beings, only.
For this reason, we believe that any proposed constitutional amendment must go beyond
simply overturning Citizens United, because the problems posed by "corporate personhood" go
far beyond Citzens United. It is NOT an exaggeration to state that, with the possible exceptionof the right to a jury trial recognized under the 7th Amendment, corporations have abused every
constitutional right recognized on their behalf.
Corporations have decimated the I st Amendment - and not just in the Citizens Unitedcontext. In recent years, oil, coal, and utility corporations, tobacco corporations, chemical andpharmaceutical corporations, alcohol corporations, and banking corporations have all
successfully claimed corporate free speech rights to invalidate federal, state and local laws.
Cigarette companies have been found to have the 1st Amendment to right to advertise cigarettes
near schools and playgrounds. Lorillard Corp. v. Reilly, 533 U.S. 525 (200 I). And, when
Vermont became the first state in the nation in 1994 to require labels on milk and dairy products
derived from cows injected with the controversial genetically engineered Bovine GrowthHormone, Monsanto sued in Federal Court and won on ajudge's decision that dairy corporations
have the First Amendment "right" to remain silent on whether or not they are injecting their cows\\ith rBGH - even though rBGH has been linked to severe health damage in cows and increased

208
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cancer risk for humans. and is banned in much of the industrialized world, including Europe andCanada. Internationol Dairy Foods Association v. Amestoy, 92 F.3d 67 (2nd Cir. 1996).
Corporations have also abused the 4th Amendment. People are literally stunned when
they are told that OSHA cannot do a surprise inspection in their place of employment. But
OSHA cannot because the Supreme Court has held that surprise OSHA inspections violate thebusiness's inalienable right to be free of unreasonable search and seizure under the 4th
Amendment. Marshall v. Barlow's Inc., 436 U.S. 307 (1978).
And Wal-Mart has attempted to use the 14th Amendment to as a cudgel, both to insinuate
itself into a town that passed a City Council resolution to keep out "big box" stores, Wal-MartStores. Inc., v. City of Turlock 483 F.Supp.2d 987 (2006); and, to beat back a Maryland law
requiring employers with 10,000 or more Maryland workers to spend a percentage of their total
payrolls on employees' health insurance costs, or pay the state the amount their spending falls
short. Retail Industry Leaders Ass'n v. Fielder, 475 F.3d 180 (4th Cir. 2007).
We, the People, have a moral, and an ethical, obligation to regulate the corporations, andother artificial legal entities, that we create. It is cleas from the examples, above, that
corporations are using the "inalienable constitutional rights" that they were never intended tohave to go to court to argue that our reasonable laws and regulations violate those "inalienable
constitutional rights." We need to amend the Constitution, ending "corporate personhood,"
because NO corporation, or other artificial legal entity, should be empowered to overturn our
democratically enacted laws and regulations.
The notorious 1886 case of Santa Clara County v. SOllthern Pacific Railroad is just one
in a long series of Supreme Court cases that entrenched "corporate personhood" in law. Justices
since have struck down hundreds oflocal, state and federal laws enacted to protect people from

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corporate harm based on this illegitimate premise, Anned with these "rights," corporations wield
ever-increasing control over jobs, natural assets, politicians, even judges and the law.
We believe corporations are not persons and possess only the privileges citizens and theirelected representatives willfully grant them. Our Amendment will reverse the Court's inventionof "corporate personhood" and limit corporations to their proper role: doing business under statecharter.
In our opinion, any proposed constitutional amendment must also include a provision thatclearly and unequivocally states that "money is not speech, and can be regulated." There areothers who support the passage of a constitutional amendment to overturn Citizens United,
including Professor Lessig who will testifY at this hearing, today, who "[do not support] any
amendment that purports to declare 'Money is not Speech,'" (Lessig Blog, v2, February 6,2012). Opponents ofa constitutional amendment that would declare that "Money is not speech"
fear that it would allow "the government [to] constitutionally prohibit anyone to spend or
contribute even a single dollar in the political process. In a world in which speech costs money,
this would give a huge advantage to incumbents and effectively destroy our democracy."(Professor Geoffrey S. Stone, "Is Money Speech?" The Blog, posted February 5, 2012).
With all due respect to Professors Lessig and Stone, our democracy has already been
destroyed by the tens of millions of dollars in unaccountable donations and spending that havepoured into the political system since National Bank ofBoston 1'. Belloti (1978) and Citizens

United v. FEe (201 0). (In that regard, Move to Amend's amendment is not about "preserving"
our democracy, Rather. it is about establishing the conditions necessary to allow us to establish,
for the first time in American history, a truly democratic, truly republican, fonn of governmentthat represents the interests of all Americans, as opposed to the privileged few.) To borrow an210Move to Amend
July 18,2012
p.9

analogy from Prof. Garrett Epps (Professor Garrett Epps, "Don't Blame 'Corporate
Personhood.'" The American Prospect. April 16. 2012) money in politics today is being used likea privately-owned bullhorn to dro\m out all of the free speech of all political speakers who aren'trich enough to afford an equally large amplification system.
Imagine that a representative of Citizens United, LLC, had been invited to give
testimony at this hearing. but that, after that representative had spoken, she used a privatelyov.ned bullhorn to droW1l out the testimony of all of the witnesses that followed. Certainly,
Senator Durbin, as the Chairman of the Subcommittee, would have the power to order the
representative from Citizens United, LLC, tum down the volume on the bullhorn, or to prohibit
the use of bullhorns in the hearing room all together, if that is what he deemed necessary to makesure that as many points of view as possible are heard.
The same is true of political speech outside of this hearing room, The voices of hundredsof millions of ordinary Americans are being drowned out in the halls of Congress bycorporations, and by the extremely wealthy, with their multi-million dollar bullhorns. Certainly,
Congress should have the power to tell those corporations, and those million-dollar donors. to"tum dO\'n the volume on their privately-owned bullhorns" - by passing reasonable campaign
finance regulations; or, to "tum their bullhorns off completely"' if need be.
Although we do not have a congressional sponsor for our Amendment, yet, we do havebroad popular support. As of yesterday, a petition in support of the amendment, which can befound online at ww\v.movetoamend.orgJamendment, has been signed by 218, J24 people.
Additionally. Move to Amend supporters have been at the forefront of the recent efforts to raise
public awareness about this issue.

211Move to Amend
July 18, 2012
p,10

In Vennon!. the resolution introduced by State Senator Virginia Lyons was based onMove to Amend's language, as were the successful ballot initiatives in Madison, WI; Boulder,
CO; and Bozeman, MT. In Los Angeles, the resolution passed by the City Council actually
incorporated, by reference, Move to Amend's proposed constitutional amendment, and dozens ofresolutions have passed across the country that are modeled on our language and spearheaded byour volunteers.
People around the country are gravitating to this issue. They are in the streets, carrying
signs that read "Corporations are NOT People" and "Money is NOT Speech!" Those are Moveto Amend's core values. Nobody is carrying signs saying "SOME Corporations are NOT
People" or "A Little LESS Money in Politics,"
We urge you, as members of the Senate to hear the voices of WE, THE PEOPLE, and tomove forward with the passage of a Constitutional Amendment that says clearly, andunequivocally; that inalienable rights recognized under the Constitution belong to humanbeings, only: and, that money is not speech.
Thank you,
Move to Amend, National Executive Committee
Ashley Sanders, Ben Manski, Daniel Lee, David Cobb, Egberta Willies, Jerome Scott, Kaitlin
Sp()oky.Belknap, Laura Bonham, George Friday, Nancy Price, Stephen Justina

212

,

PEOPLE~~FORTHE•.~ \ AMERICAN

r "" WAY
July 24, 2012

Senate Judiciary Committee
Senate Subcommittee on the Constitution, Civil Rights and Human Rights
Re: Taking Back Our Democracy: Responding to Citizens United and the Rise of Super
PACs

Dear Chairman Durbin and Members ofthe Subcommittee:
People For the American Way (PFA W) commends you for holding this extremely importanthearing. We appreciate this opportunity to address the serious problems that have arisen since
the Supreme Court's disastrously misguided ruling in Citizens United v. Federal Elections
Commission.

Introduction
The January 20 10 Citizens United decision granted corporations the right to make unlimited
independent expenditures to support or defeat electoral candidates. The narrow 5-4 majority
decision was based on two severely flawed foundations: (l) that corporations have the same
First Amendment rights as people to make independent expenditures to affect elections; and (2)that such independent expenditures cannot possibly cause real or perceived corruption and,
therefore, any government interest in limiting such expenditures is outweighed by the
corporation's First Amendment right.
.
Within weeks of Citizens United, the DC Circuit relied on that case in its SpeechNow v. Federal
Elections Commission opinion. The court ruled that since independent expenditures do not cause
real or perceived corruption, then an individual's giving contributions to groups that make only
independent expenditures also cannot create real or perceived corruption. Therefore, according
to the court, the Constitution prohibits laws limiting individuals' contributions to such entities.
And so the current phenomenon of unlimited contributions to the "super PAC" was born.
Americans have responded to Citizens United and its progeny with remarkable agreement. A
nation that is split down the middle on so many political issues nonetheless agrees
overwhelmingly that the people's constitutional authority to hold elections with integrity must be
restored. Surveys show lopsided supermajorities opposing Citizens United. For instance, pollingfrom earlier this year, two years after the Court handed down the opinion, reveals that 62% ofAmericans oppose the Court's decision, and more than half say they would support a
constitutional amendment to reverse it.! Around the nation, local and state governments are
I Democracy Corps and Public Campaign Action Fund, Two Years After Citizens United, Voters Fed Up with Moneyin Politics, http:// campaignmoney.orgifiles/DemCorpPCAFmemoFINAL.pdf. The survey was conducted by
Greenburg Quinlan Rosner Research.

213
responding to their constituents by passing more than 275 resolutions urging Congress to send a
constitutional amendment to the states for ratification. Six state legislatures are on record insupport of constitutional remedies: Hawaii, New Mexico, Vermont, Rhode Island, Maryland,
and California. They have been joined by towns, cities, and counties both large and small, in red
states and blue states, like Kansas City (Missouri), Fayettesville (Arkansas), Los Angeles and
San Francisco (California), Alleghany County and Asheville, (North Carolina), Albany and New
York City (New York), Missoula (Montana), Wilkes-Barre and Pittsburgh (Pennsylvania), South
Miami (Florida), and Madison (Wisconsin).
In distorting the Constitution, the Supreme Court has created a "movement moment," where
Americans are joining together to fix the country we love. During today's hearing, we lookforward to an honest examination of the damage that Citizens United and its progeny have done
to our nation, damage that can be repaired only through a constitutional remedy.

Corporations do not have the same First Amendment rights as people.
Citizens United treated corporations and people the same for the purposes of a First Amendment
analysis of campaign spending rules. In elevating the constitutional rights of a corporation to
those of a person in the context of affecting elections to public office, the Roberts Court hasradically transformed the fundamental premise of the Constitution: For the first time,
corporations are, as a constitutional matter, members of the political community of the UnitedStates. Sovereign power no longer flows only from the people, but now must be shared bypeople and non-human corporations.
The First Amendment was never intended to equate multibillion dollar corporations with real
persons. Nothing in the Constitution even requires governments to allow corporations to exist.
A corporation is an artificial creation whose basic nature is determined by the state law where it
is incorporated. Governments allow businesses to organize as corporations in order to limit thefinancial liability of their owners and managers. A corporation, unlike an individual, does not
retire, die, and distribute its wealth among its descendants. A corporation, unlike an individual,
can consist of thousands of people working full time across the country, operating in several
sectors of the economy simultaneously. The corporation can take risky actions that lead to big
payoffs, but its owners and managers are not personally liable for those actions if they fail. In
other words, the law grants corporations vast, superhuman abilities that are denied toindividuals. And with those vast abilities, granted to these artificial creations at the discretion of
the government for the purpose of advancing commerce, the corporation can amass far more
wealth than an individual can.
So the idea that the First Amendment requires governments to treat these corporations
identically to people for the purposes of regulating how corporations spend that wealth toinfluence elections is bizarre.
This recognition of the obvious differences between people and corporations - and the subsidiaryrole the latter play in our constitutional structure - was not lost on those who adopted theConstitution. As Chief Justice John Marshall wrote in 1818, "A corporation is an artificial being,
invisible, intangible, and existing only in contemplation oflaw. Being the mere creature oflaw,2

214
it possesses only those properties which the charter of creation confers upon it, either expressly,or as incidental to its very existence.,,2
The Citizens United majority went on at great length about how the campaign finance laws inquestion purportedly restricted and even punished the political speech of "associations ofcitizens" during election seasons. A gathering of Bostonians challenging George III is an"association of citizens," but that term can hardly be used to describe creations of the state
licensed solely to do business and make a profit. Moreover, the laws in question did not restrictor punish any people. A law that restricts corporate spending does not at all affect individuals'
ability to talk or to spend their own money, either alone or in conjunction with other people. It
does prevent the use of funds from a corporation's general treasuries to spend money toinfluence elections.
Before Citizens United was decided, the people who ran corporations were not having any
difficulty making their voices heard during election campaigns, including on matters of directinterest to their corporations. They could have their corporation set up a PAC, then give theirpersonal money directly to the PAC for electoral purposes, with the PAC either giving directly toa campaign or making independent expenditures. In addition, like anyone else, they could
contribute directly to candidates running for office subject to contribution limits.
What these businesspeople could not do before Citizens United was spend the cQrporation 's
money to advocate for or against a federal political candidate. But in the wake of Citizens
United, corporate officers can now tap into the potentially vast resources of the corporate
treasury, essentially spending someone else's money. Ordinary people have no such luxury; themoney they donate must be their own. But corporate CEOs and business owners can now give
millions of dollars for independent expenditures without losing a dime of their own money. Thisis a stunning new inequality given constitutional legitimacy by the Supreme Court: Those withpositions of influence have been handed even more influence.

Massive funds from large corporations and a sliver of extremely wealthy individuals cannot
help but have a destabilizing influence on our national political structure and effectively
silence the majority.
In 2008, before Citizens United, Exxon-Mobil set up a PAC that raised more than $1 million
from corporate officials. That is a significant amount of money, but it all came from individuals.
That same year, Exxon-Mobil earned $70 billion in profits. Had Citizens United been the law,the company could have devoted a mere 10% of those profits to affecting elections and dwarfed
the PAC's spending by a factor of 7000. The $7 billion it could have easily spent would havebeen more than was spent by the campaigns of Barack Obama, John McCain, and every Senate
and House candidate combined.
And that is just one company.

2

The Trustees a/Dartmouth Col/ege v. Woodward, 17 U.S. 518 (1818).

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Imagine the most powerful corporations in the nation devoting these enormous sums to affectelections. The voices of 99% of the population would be completely drowned out, with the
airwaves filled with corporate-sponsored ad after corporate-sponsored ad.
All this spending would have something in common: the corporate officers who write the checks
have a fiduciary duty to maximize shareholder returns. The goals that animate people acting on
their own behalf - concern for their community, concern for their neighbors, concern about
values - are irrelevant to how that corporate electoral money is spent. In fact, in some cases,
corporate officers who allow themselves to be swayed by such human factors may be violating
their fiduciary duty to the companies that employ them.
Of course, to accomplish its goals, a corporation need not actually spend such sums in every race
they are interested in. Far from it. Especially for offices or in areas where electoral races are
generally not overwhelmingly expensive in other words, for most state and local legislative andjudicial elections throughout the United States - the implied threat to spend large expenditures
against elected officials could easily be enough to "persuade" them to take the "right" position.
Conversely, the promise of an enormous windfall in supportive corporate independent
expenditures could have an equally persuasive effect.
Such corruption leaves no evidence: no paper trail, no recordings, no ads. But it poisons ournation's democracy.
Unfortunately, limitless spending from the wealthy and powerful need not be corporate in source
to drown out the voters and intimidate elected officials: Especially through super PACs, we areseeing a tiny number of phenomenally wealthy individuals exert obscenely oversized influence
over elections. For instance, during the 2012 presidential primary campaigns in Alabama andMississippi, 91 % of the television ads promoting presidential contenders were paid for by thecandidates' super PACs. 3 Certain candidates with little public support and thus minimal funding
to their campaigns were nevertheless able to campaign for months on the "generosity" of one or
two billionaires, whose support for single-candidate super-P ACs grossly disrupted the electoral
process.
Does anyone doubt the influence these mega-donors would have had in a White House run by
the individuals whose efforts they indirectly bankrolled?
Whether those super-PACs are funded by phenomenally wealthy individuals or phenomenallywealthy corporations, they are doing serious damage to our democracy. The lesson is being
learned not just on the national stage via the presidential campaign, but in states andcommunities across America.
In Arizona, for instance, corporate money brought into play by Citizens United may havedecided that state's election for Attorney General in 20 I O. The race between Republican Tom
Horne and Democrat Felecia Rotellini was expected to be the closest statewide race that year,
and the two candidates' campaigns' spending were relatively close to each other. But during the
J Bloomberg News,

Super-PAC Ads Dominate Republican Race in Alabama, Mississippi, http://W\\"W.

business week.comlnews/20 12-03 -12/super-pacs-dominate-republican-ads-aired-in-alabama-mississippi-primaries.

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final weeks of the campaign, a conservative organization called Business Leaders for Arizona[BLA] spent more than half a million dollars on independent expenditures attacking Rotellini,the Democrat. This happened when her campaign was low on cash, making it harder to respond.
Horne - buoyed by BLA's election spending - ended up winning by five percentage points.
Discussing the race earlier this year, Rotellini's campaign manager credited the independent
expenditures with throwing the race to the Republican: "If he hadn't have had access to all thatmoney, it would've been a different race -- and r think it clearly would've been a different
outcome.,,4
And just who were the business leaders of Business Leaders for Arizona? After the election,
BLA's campaign finance report to the stateS revealed that only 25% of its contributions in thosecritically important final weeks came from individual contributions (and less than 15% of thoseindividual contributions came from people in Arizona, despite the organization's name). BLA
reported that 75% of its funds came from three business contributions:• NCP Finance Limited - $30,000• Texas Loan Corporation - $15,000• RSLC - $350,000
RSLC, BLA's largest funder, turns out to be the Republican State Leadership Committee.
According to the Annenberg Center's FactCheck project 6, the RSLC was a 527 politicalcommittee whose top donors were the U.S. Chamber of Commerce, Wal-Mart, Pfizer, Devon
Energy, AT&T, Reynolds American (the tobacco company), and the American JusticePartnership, an organization seeking legislation to limit liability awards and reduce what it calls"abusive lawsuits."
Arizona's state constitutional provision protecting its elections from corporate domination 7 wasjust one of many state and local provisions across America upended by Citizens United. s

The premise that independent expenditures don't cause real or perceived corruption has
been proven to be wrong.
Even the Roberts Court acknowledges that the American people, through our elected
governments, have an important interest in preventing public corruption, both real and perceived.
Where Citizens United departed from the reality-based world was its assertion that independent
expenditures cannot possibly cause real or perceived corruption and, therefore, any government
interest in limiting such expenditures is outweighed by the corporation's First Amendment right.

4 http://www.azcentral.comlnews/articles/20 12/04/02120 120402attorney-general-tom-horne-underinvestigation.htm!.
5 State of Arizona Campaign Finance Report, Amended 2010 Post-General Election Report of Business Leaders for
Arizona, http://www.azsos.gov/cfs/PublicReports/2010/ClOF8C6B-F26E-44A8-B770-8D50F934DI6A.pdf.
6 Annenberg Public Policy Center, FactCheck.org entry for Republican State Leadership Committee (posted August
10, 2010), http://www .factcheck.orgl20 10/08/repu blican -state-leadership-committee.
7 "It shall be unlawful for any corporation, organized or doing business in this state, to make any contribution ofmoney or anything of value for the purpose of influencing any election or official action." AZ Const. Art. 14, §18.
'National Council of State Legislatures, Life After Citizens United, http://,,,ww.ncs!.orgilegislatureselections/elections/citizens-united-and-the-states.aspx.

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While Citizens United involved corporate spending, the logic was that applied (and limited) to
individuals in Buckley v. Valeo. But even that 1976 case's finding was narrow and tentative,
with the majority concluding that "the independent advocacy restricted by the provision does notpresently appear to pose dangers of real or afparent corruption comparable to those identified
with large [direct] campaign contributions." Citizens United was more doctrinaire, concluding"that independent expenditures, including those made by corporations, do not give rise tocorruption or the appearance of corruption."!O
Survey data show that statement to be demonstrably false.
••

According to a Democracy Corps and Public Campaign Action Fund survey fromJanuary 2012, two years after the decision, two-thirds of Americans agree with astatement that says: "Given what I see in the presidential race, I am fed up with the big
donors and secret money that control which candidates we hear about. It undermines
democracy."!!
An April, 2012, survey by the Brennan Center 12 revealed that:o 68% of all respondents agreed that "a company that spent $ I 00,000 to help elect amember of Congress could successfully pressure him or her to change a vote on a
proposed law"
o 77% agreed that "A member of Congress is more likely to act in the interest of agroup that spent millions of dollars to elect him or her than to act in the public
interest."
o 69% believe that "the new rules that let corporations, unions and people giveunlimited money to Super PACs will lead to corruption."o 26% said they are "less likely to vote because big donors to Super PACs have somuch more influence over elected officials than average Americans." The
withdrawal from the most basic and most important activity in democracy waseven more pronounced among African Americans (29%), Latinos (34%), andpeople with annual incomes under $35,000 (34%).

Unfortunately, the laissez-faire campaign finance system that Citizens United made possible has
clearly shown that enormous independent expenditures not just can, but do, lead to theappearance of corruption. This key factual premise upon which Citizens United was based issimply not true. Earlier this year, millions of Americans were hoping that the Court, perhaps
having made an honest error, would take advantage of the recent Montana campaign finance caseto reexamine the assumptions underlying Citizens United. The Montana Supreme Court had
cited that state's dark history of political corruption caused by corporate influence on elections in
upholding a state law prohibiting corporations from making independent expenditures in stateand local races (including judicial elections). But when the same narrow majority as Citizens
United reversed the Montana Supreme Court without even giving the state the opportunity to
9Buckley v. Valeo, 424 U.S. I, at 46 (1976) (emphasis added).
Citizens Unitedv. Federal Elections Commission, No. 558 U.S. - ' _ (2010) (slip op. at 42).

10

11 Democracy Corps and Public Campaigo Action Fund, above.

0/Americans' Attitudes
about the hifluence a/Super PAC Spending on Government and the Implications/or our Democracy,
12 Brenan Center for Justice, Super PACs. Corruption, and Democracy: A National Survey

http:ltbrennan.3cdn.netlbcb50100cOdda6d39a g3m6bc9py.pdf. (Executive Summary:
httn:llbrennan.3cdn.netl5d2fi3bdfc12b2eb27 pym6b9cdv.pdf.

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present oral argurnents 13 , Americans saw that Citizens United had been no honest mistake. The
five conservatives on the Roberts Court knew exactly what they were doing.
So now the American people perceive a significant increase in political corruption as a result of
the spending let loose in Citizens United and its progeny. When people regularly regard theirgovernment as corrupt and available for sale to the highest bidder - when elections are no longer
seen as reflecting the voice of the people - then faith in our democracy is severely undermined.

Amending the Constitution to Overturn Citizens United Shows Respect for theConstitution.
Amending the United States Constitution is not something we recommend lightly, but the danger
caused by the Roberts Court's distortion of the First Amendment requires us to take corrective
action. Some who are genuinely concerned about the threat to our democracy might neverthelessbe reluctant to tamper with perhaps the greatest legal document in world history. As anorganization that deeply respects the Constitution, we understand that reluctance, and we address
this section of our comments to those of that view. We also extend an invitation to engage with
the nationwide grass roots coalition united in wanting a constitutional remedy and discussing thevarious forms that such an amendment might take.
Some may be concerned because a Citizens United amendment has been characterized as thefirst to take away aconstitutional right. This description is inaccurate for two reasons. First,
Citizens United did not extend any new rights to individuals, to any member of the "We The
People" who are this nation's sovereign power, with the sole exception of corporate officers who
were given the new right to write checks from their extensive corporate treasuries to affectelections that are supposed to represent the people's voice. The right to spend our own money inpolitics was one already enjoyed by every citizen, and restoring the person/corporation
distinction would restore each person's right to engage in a vigorous debate over public issues.
Second, constitutional reform that has protected and expanded rights has always beencharacterized by the forces of reaction as "taking away rights." The Thirteenth Amendment took
away the property rights of white southerners who dehumanized African Americans and reduced
them to property to be bought and sold. White men's voting power was undeniably diluted by
the Fifteenth and Nineteenth Amendments, granting the right to vote to non-whites and women.
The 16th Amendment took away the right of plutocrats to not pay their fair share in the taxes
needed to run the country that allowed them to make their fortunes. The 17th Amendment took
the right of often-corrupt state legislatures to pick senators, placing that right in the hands of theAmerican people. In all of these cases, the Constitution was amended to make it better reflect
the values on which our nation was founded. A constitutional amendment to strengthen ourelections and prevent corporate and special interest money from drowning out all other voices
would be in that same tradition ofimprovements to the ideal and thus would protect the First
Amendment rights of actual people.

13 American Tradition Partnership, Inc.

v. Bullock, 567 U.S. __ (2012).

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It is also important to note that even as the fundamental purposes ofthe First Amendment remain
constant through the years - to protect the freedom of the individual and promote the vigorous
exchange of ideas - the means through which the First Amendment accomplishes those functions
evolves along with changes in technology and society.
For instance, at the time our nation was founded, requiring a government license in order tospeak via popular media could not have had any purpose or effect but to limit speech. Although
the founders could not have imagined a world where people send electronically amplified spoken
messages over the air at the speed of light to far-away listeners, the First Amendment was able toadapt to this major technological change. In the early days of radio broadcasting, unregulated
facilities interfered with each other and often prevented anyone from being heard over the
airwaves. The traditional idea that more speech facilitates debate was turned upside down;
additional broadcasting significantly curtailed the ability of other radio operators to be heard,
often silencing them altogether. A content-neutral broadcast licensing system was developed toensure that speakers could be heard, thereby protecting the First Amendment interests of bothspeakers and the public. J4
The First Amendment did not change, but the world within which it operates did.
We now live in an economic, technological, and media environment where the ability of ordinary
people to be heard in their communities' political debates is being eviscerated. Corporate andspecial interests with wealth that would have staggered our nation's founders purchase hugeamounts of air time, drowning out the diverse voices of the 99%. Even worse, the identity ofthe
speakers is often deliberately concealed, ensuring that voters are denied a key fact needed toanalyze the reliability of the message being sent.
We can amend the Constitution to ensure our society accomplishes the fundamental purposes of
the First Amendment. Currently, debate is in an early phase on how to accomplish that: To
address the status of corporations under the Constitution? To address the damage to ourelections caused by vast inequalities of access to effective means of communication? Perhaps
some other way that has not yet been broached? An effective amendment will strengthen theFirst Amendment, not weaken it.
Conclusion

As an organization dedicated to defending the Constitution and, especially, the First Amendment,
People For the American Way understands that a constitutional amendment is not an endeavor to
be taken lightly or without great care to protect the rights and liberties of individual Americans.
But the Supreme Court's decision to effectively silence the voice of the American people byinvalidating restrictions on spending in elections by the nation's most powerful, wealthy, andelite is such that a constitutional amendment is the only appropriate and direct response.

14 The Supreme Court discussed the early days of radio and the need for a government licensing system to ensurethat speakers could be heard in National Broadcasting Co. v. United States, 319 U.S. 190,210-213 (l943).

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That a constitutional amendment is needed to protect the viability of our democracy is something
most Americans agree on. We also agree that it must be done with great care, which is why thenation has launched a conversation about the exact form that such an amendment will take. Byhighlighting the current threats to our democracy, the subcommittee is providing the American
people with the information needed to ensure a vigorous and productive debate.

Michael B. KeeganPresident
People For the American Way

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Take Back the Constitution from the Corporate Court
Constitutional Progress over the Enemies a/Popular Democracy is the American Way.

By Jamie Raskin
The American people have been forced several times to amend the Constitution toreverse the damage caused by the Supreme Court when it acts in collusion with the enemies ofsocial justice and popular democracy.
In 1857, in the Dred Scott decision, the Supreme Court ruled that white supremacy wasbuilt into the Constitution as the original intent of the Framers, that African~Americans therefore
could not be citizens entitled to bring suit in federal court, and that African-Americans had norights that the white man was bound to respect. After the Civil War, the Radical Republicans
moved to reverse that infamous decision through the 13 th, 14th and 15 th Amendments, which
abolished slavery, proclaimed equal protection and due process under the laws, and protected theright to vote of all citizens regardless of race.
In 1875, in Minor v. Hapersett, the Court ruled that the Equal Protection Clause did notprotect the right of women to vote, declaring that the domestic sphere was women's proper place.
In response, the suffragists mobilized campaigns in the state legislatures and Congress,
committed civil disobedience by chaining themselves to the White House fence, andthaccomplished passage in 1920 of the 19 Amendment.
In 1937, in Breedlove v. Suttles, the Court rejected an Equal Protection attack on theimposition of poll taxes as a condition for voting. This decision cemented the plutocratic andracist practice in many Southern states but the Civil Rights Movement finally won passage of the24th Amendment in 1964 banning poll taxes in federal elections. Still, many states continued tocharge poll taxes for voting in state elections, a practice that did not end until the Court read the24th Amendment as changing the meaning of Equal Protection and struck it down in Harper v.

Virginia Board ofElections (1966).
Indeed, most of the 17 constitutional amendments passed since the Bill of Rights havebeen franchise-expanding and democracy-reinforcing provisions that strengthen the progress ofwhat Lincoln called "government of the people, by the people and for the people."Of the Corporations, By the Corporations, For the Corporations
Now, in the bitterly divided Citizens United decision (2010), five Justices on the Roberts
Court have held that corporations have the right to spend unlimited sums of money promoting or

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disparaging political candidates. This decision - built on the dangerous fallacy that statechartered corporations enjoy the same political free speech rights as the people - strikes anotherdangerous blow against popular democracy. It is a blueprint for government of the big
corporations, by the big corporations and for the big corporations.

Citizens United upended the bedrock understanding, more than a century old, that
corporations, because of their "artificial" nature and all of the legal benefits bestowed upon them,
have no "money speech" rights in political campaigns. The decision capsized at least four prior
Court decisions, wiped out dozens of federal and state laws banning corporate politicalexpenditures that go back more than sixty years, and undermined the rationale for the federal ban
on corporations giving contributions directly to candidates that began with the Tilman Act in
1907.
The new doctrine is that, when it comes to campaign finance rights, the "identity of the
speaker" is wholly irrelevant, and corporations have a First Amendment right to spend freely inpolitics because the speech they purvey is intrinsically valuable. Followed faithfully to its logic,
this amazing doctrine protecting corporate political spending in the name of speech by citizens
will end up not only toppling the ban on direct corporate contributions to candidate campaigns
but also empowering churches, non-profit corporations, aliens, cities (municipal corporations),
states and foreign corporations to spend their treasury money on behalf of political candidates
too, both as campaign spenders and campaign donors. If the identity of the speaker is irrelevant,well, then, the identity of the speaker is irrelevant - unless, of course, this triumphantly
proclaimed categorical doctrine is, like the decision in Bush v. Gore, actually a one-way ticket
good only for special persons and classes favored by the ruling faction on the Court.
Furthermore, James Bopp and the other pro-corporate lawyers driving this train are also
now making clear that they want to do away with the campaign finance disclosure laws that wewere originally told were the certain antidote to a full-blown corporate takeover of our politics.
Today, corporate conservatives challenge campaign finance disclosure requirements as
unconstitutional compelled speech, like making Jehovah's Witness school children pledge
allegiance to the flag. They argue that corporations should not have to disclose their politicalexpenditures and contributions at all because they will face intimidation and reprisal, even - God
forbid - boycotts, from consumers who disagree with their political commitments. In otherwords, corporations have a right to speak because they are like citizens, but they should becompletely insulated from the speech reactions of real citizens and given the power to channel
their money not only massively but secretly to promote the corporate bottom line. This is some"marketplace of ideas" that the champions of corporate power have in mind for our democracy.
Many people have read Citizens United as establishing rights of "corporate personhood"
but that step was taken long ago by another corporate-friendly Court, acting under the Equal
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Protection Clause, in the Santa Clara County v. Southern Pacific Railroad decision in 1886.
The Court has essentially recognized since that time that, since the property of real people is tied
up in artificial corporations, it cannot be taken or seized outside of the ordinary protections of theconstitutional system. But Citizens United advances a far more radical proposition: corporations
must be treated not just fairly as economic entities but as equal rights-bearing political citizens of
the Republic that may use the vastly greater wealth and resources they have earned from theireconomic activity to win political power and favorable public policy. This is not corporate
personhood, as everyone says; it is super-personhood.
Conservative Judicial Activism Triumphant
The parties in Citizens United had not even asked the Supreme Court to reach this radical
result. Indeed, the five conservative jurists sympathetic to Citizens United in the case had
available to them numerous statutory routes for finding that the group had a right under the
Bipartisan Campaign Reform Act to release its anti-Hillary Clinton movie before the 2008
election. As Justice Stevens suggested in dissent, an on-demand movie that people have to order
is nothing like a ubiquitous television ad, and the vast majority of the money raised by Citizens
United was from individual political contributions, only a de minimis amount from for-profit
corporate sources--a situation that offered another easy way to find for Citizens United without
overturning many decades of jurisprudence ..
But the conservative justices obviously had much bigger game to kill. They ordered theparties to go back and brief and argue the big question they wanted to answer. And what do you
know, after looking at the question they posed, the 5-justice bloc discarded the central canon of"constitutional avoidance" (the judicial preference for deciding cases on statutory rather thanconstitutional grounds whenever possible and interpreting statutes whenever possible so as not tocreate constitutional conflict) and came back with a decision that amounts to a declaration ofpolitical independence for corporations.
This decision reflected the triumph of a conservative judicial activism that has beenpushing hard for decades to make corporate power king in our politics. One key player in thisdrive was corporate lawyer Lewis Powell, who wrote a memorandum to the Chamber ofCommerce in August 197 I, just two months prior to his nomination by President Richard Nixon
to the Supreme Court, proposing a strategy for restoring corporate political dominance in the
country. Once on the Court, Justice Powell authored the thin majority opinion in First National
Bank ofBoston v. Bellotti (1978), which gave banks and corporations the right to spend
unlimited amounts of money in public initiative and referendum campaigns and first floated theradical concept that, when it comes to corporations seeking the right to be financial players inpolitics, the "identity of the speaker" is wholly irrelevant. Corporations are plain old folk, justlike you and me.
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The victory of the corporate mindset on the Court became complete in the first decade of
the 21st century. Five conservative justices began the decade by shutting down the manual
counting of more than 100,000 ballots in Florida and brazenly deciding the 2000 presidential
election for George W. Bush, the candidate of right-wing corporate power. Since the next two
Court vacancies were filled by Bush, the Court's conservatives engineered a dramatic procorporate makeover of the Court. As a result, five conservative justices ended the decade byauthorizing corporations to become key money actors in every election in a way that no one hadseen since the Watergate period when big businessmen passed bags of cash to President Richard
Nixon's operatives and bagmen.

Demolishing the Wall o/Separation Between Corporate Treasuries and Public Elections
To appreciate the radicalism of Citizens United requires an understanding of what the law
was before 2010. Corporations could lobby Congress, states and localities and spent billions ofdollars doing so. They could spend freely on "issue ads" promoting their policy positions andcastigating their critics. They could spend money on voter registration drives and on internal
corporate campaigning. They created Political Action Committees (PACs) and solicitedcontributions to them from their CEOs, executives and directors; the P ACs could then contributemoney directly to federal candidates or spend independently. Meantime, CEOs, other executives
and directors-people whose income and wealth have soared over the last several decades inrelation to the rest of the country - contributed directly to federal, state and local candidates as
individuals. In other words, despite all of the ludicrous whining by Citizen United's defenders,the corporate perspective was never missing in American politics.
But there was one crucial thing that CEOs could not do prior to this outburst of rightwing judicial activism: they could not reach into their corporate treasuries to spend directly to
advocate on behalf of (or against) the election of candidates for Congress or President. This
prohibition essentially established a wall of separation between corporate treasury wealth andfederal public elections. This wall was first erected by the Tillman Act of 1907 banningcorporate campaign contributions to federal candidates, a policy decision advocated by President
Theodore Roosevelt and made after a series of scandalous raids by insurance company
executives on what Louis Brandeis called "other people's money" to finance the campaigns offriendly politicians. The wall was fortified over the last century by progressively stronger banson independent corporate expenditures enacted in both federal and many state laws These bans
were affirmed by the Supreme Court in Austin v. Michigan Chamber o/Commerce (1990) and
McConnell v. FEC (2003), decisions which recognized the necessity of maintaining sharp
distance between corporate wealth and democratic politics to prevent what the Austin Court
called "the corrosive and distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have little or no correlation to the
public's support for the corporation's political ideas."4

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A PEOPLE~/~.tMW" FOR TH E~~'AMER1CAN,'" WAYThe Roberts Court's demolition of this wall of separation crushed a specificunderstanding of the corporation that goes back two centuries and had been accepted not only byliberals but by most of the leading conservative justices in our history. A corporation has neverbeen seen as a constitutional person with voting rights or even as a political membershiporganization, but rather as an "artificial entity" chartered by the states or federal government toserve economic purposes. Chief Justice John Marshall wrote in the Dartmouth College case(1818) that, "A corporation is an artificial being, invisible, intangible, and existing only incontemplation of law. Being the mere creature of law, it possesses only those properties which
the charter of creation confers upon it, either expressly, or as incidental to its very existence."
Any constitutional rights claimed by corporations are totally derivative of natural persons and if
those rights are separately vindicated for the individuals, the corporation will have none to claim.
In the Bellotti case, conservative Justice Byron White pointed out that we endow private
corporations with all kinds of extraordinary legal benefits and subsidies - "limited liability,
perpetual life and the accumulation, distribution and taxation of assets" - in order to"strengthen the economy generally." But, he argued, a corporation has no constitutional right toconvert its awesome state-enabled economic resources into political power. As he so cogently
put it: "The state need not permit its own creation to consume it." Chief Justice William
Rehnquist agreed, arguing that business corporations, which are magnificent agents of capital
accumulation and wealth maximization in the economic sphere, "pose special dangers in thepolitical sphere."
While champions of corporate political power pretend as if it would be impossible todisentangle corporations from politics, we have an easy model to follow, which is that ofmunicipal corporations and states, which also have the capacity to "speak" on policy issues
through their leaders but no constitutional right to spend money in our political campaigns. Of
course, if the "identity of the speaker" is truly irrelevant, as the new dogma insists, then cities
and states will inevitably come to acquire the corresponding right to spend money in politics
influencing people's votes. Of course, this would be a bizarre inversion of democratic
relationships-the same kind of inversion effected by Citizens United itself. Yet, if we fail topull back from treating corporate wealth as a fountain of political expression, we may be forced
to get cities and states involved as political actors as a very modcst counterweight to the
awesome power of the private corporations. Of course state and municipal governments captured
by corporate-backed elected officials could just as well come to promote, rather than counter, thealready-immense political voice of private corporations. At a certain point, Big Business and
Big Government will just merge.
Enthroning Corporations

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r

By demolishing the wall separating our campaigns from the trillions of dollars ofcorporate wealth in America, the Roberts Court has enthroned for-profit corporations in ourpolitics and proved itself to be far to the right of the Rehnquist Court.
Consider what the decision might mean in the case of Exxon-Mobil, the nation's largest
company and a powerful political actor even before Citizens United.
In the 2008 election cycle, Exxon-Mobil's PAC raised more than a million dollars fromexecutives and directors, money that came from the pockets of real-live human beings (and could
not be reimbursed to them by the corporation). That not insubstantial sum undoubtedly gaveenhanced collective voice to whatever contributions the donors had made individually. Poor
people don't have PACs to compete, but fair enough, this is how the system has worked for many
decades.
But imagine if Citizens United had already been the law.

In 2008 the company made $70 billion in profits. If the CEO had taken a modest 10% of
those annual profits and spent $7 billion promoting the corporate agenda in elections that year, it
would have been more than the Obama campaign, the McCain campaign, and every Senate andHouse candidate combined.
That's one company in the Fortune 500. Multiply that new power by the other Big Oil
players, the pharmaceutical industry, and the military-industrial complex, and you get a sense of
how the Court has replaced the "one person one vote" relationship with the madcap ethos ofWall Street traders playing Monopoly and Risk with other people's money. All of this money, by
law and by the very definition of what a corporation is, must be spent advancing the company
bottom line and increasing shareholder value. Concern for the local or national community is anirrelevant, and potentially wrongful and actionable, distraction from maximizing shareholder
returns.
Of course, Exxon-Mobil need not spend anything like billions of dollars in order to makeits point. If the CEO drew down a mere 1% of its annual profits to spend $ 700 million, thiswould be more than enough to propel its agenda and end the political careers of the two or threemost difficult Members ofthe Senate and House, sending a sharp signal to all the others about
the price of crossing its path.
We have already seen the difference that free-flowing corporate money makes. The 20 I 0election should have been defined by three recent corporate catastrophes--the BP Oil spill in the
Gulf of Mexico, which wrecked an entire eco-system and inflicted billions of dollars of damageon the economy; the Massey company's collapsing coal mines in West Virginia, which cost 29
people their lives and were made possible by the corporation's aggressive lobbying and
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corruption of government; and the sUb-primc mortgage meltdown brought to us by the
misconduct and political machinations of AIG and Wall Street, which cost the American people
trillions of dollars in lost home values (and lost homes), ravaged pension and retirement funds
and destroyed stock equity.
But the massive infusion into the 2010 election campaign of tens of millions of dollars incorporate and personal wealth through secretive 501(c)4 and 501(c)6 organizations and the newsuper-P ACs completely changed the subject away from these debacles. With 84 special-interest
super-PACs in action and unknown numbers of 50lc4 and 50lc6 organizations pumping insecret money, the dominant theme of the election became-amazingly-the importance offurther deregulating corporations. The Republican Party and the corporate-backed Tea Party
captured control of the U.S. House of Representatives and brought near paralysis to national
government. The corporate catastrophes experienced by the nation went unaddressed in the
campaign and ignored by Congress.
Citizens United did not accomplish this feat alone but rather had a key strategic partner in
SpeechNow v. FEC, another carefully staged 2010 right-wing legal production. This decisioncame from the U.S. Circuit Court of Appeals for the District of Columbia, which wiped out any
limits on what individuals can give to independent expenditure campaigns and thus made SuperPACs what they are today. While Citizens United freed the corporations, SpeechNow
emancipated the billionaires, like Sheldon Adelson, the casino king, whose $20 million SuperPAC spending kept Newt Gingrich's 2012 presidential campaign on a system of parallel life
support through barrages of negative advertising unleashed on Mitt Romney in the Republican
primaries. After Romney won the nomination, Adelson put $10 million into an anti-Obama
Super-Pac and promises to spend tens or even hundreds of millions dollars more to elect Romneypresident.
Today there are 577 Super-PACs and experts predict that more than $1 billion will be channeledinto the 2012 election.

A Constitutional Amendment is Democratic Self-Defense

Amending the Constitution today to rebuild the wall of separation between corporate
treasury wealth and political campaigns is an act not only of essential democratic self-respect but
urgent democratic self-defense and self-preservation.
An Amendment gives us the chance to exorcise the plutocratic demons that have haunted
us since the rise of industrial capitalism and were constitutionalized when the Court in Buckley v.
Valeo ruled that wealthy individuals cannot be limited in their independent politicalexpenditures. The Buckley Court dismissed as invalid a democratic interest in promoting theconditions for political speech equality. Ignoring the rigorously equal speech allotments we use
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4

PEOPLE~~~~~IT~lN,....... WAY

in every major political and legal institution--including the Senate, the House of Representatives,
and the Supreme Court itself, not to mention candidate political debates and the equal accessrules governing broadcast radio and television, the Court simply declared that the "concept thatgovernment may restrict the speech of some [in 1order to enhance the relative voice of others iswholly foreign to the First Amendment .... " This was the moment when the Court drove a deep
wedge between political liberty and political equality in favor of class power.
A constitutional amendment that empowers Congress and the states to regulate campaign
contributions and expenditures would permit revival, on a viewpoint-neutral basis, of theessential but invalidated prohibitions on corporate political expenditures and unlimited
billionaire spending. Such an Amendment could also reassert the public's imperiled interest in
campaign finance disclosure and, as Professor Laurence Tribe has pointed out, the public's
much-eroded interest in building public campaign financing regimes that make publicallyfinanced candidates at least minimally competitive with privately financed candidates--aninterest that the Supreme Court has trashed of late, in cases like Davis v. FEC (2008) andArizona Free Enterprise Club's Freedom Club PAC v. Bennett (2011). In these decisions, theCourt has, in essence, ruled that privately financed candidates backed by wealthy interests have
not only a right to spend to the heavens to win office but a right to freeze their financial
advantages over public ally financed candidates, whose campaigns may not be subsidized or
aided by government in any way to enlarge their power to communicate effectively against
candidates of massive private wealth. Here, as distorted beyond recognition by the Roberts
Court, the First Amendment becomes not the guardian of equal democratic liberties but theguarantee of unequal protection of the laws.
Many civil libertarian stalwarts, like Burt Neuborne and Professor Geoffrey Stone, havenot fallen for this prostitution of the First Amendment and some have expressed strong support
for a constitutional amendment to undo the damage.
But it is a matter of some melancholy that others, like the esteemed Laura W. Murphy,
head of the Washington office of the ACLU, have been condemning a constitutional amendment
strategy. Murphy wrote in the Huffington Post that, "The Constitution's radical stability is its
greatest strength." But the people have repeatedly amended the Constitution when the Supreme
Court makes common cause with the opponents of popular democracy. As Justice Thurgood
Marshall observed in his famous speech on the Bicentennial of the Constitution, "the true
miracle was not the birth of the Constitution, but its life, a life nurtured through two centuries ofour own making ... "Yet, Murphy argues that this proposed Amendment would be different from others
because "this would be the first amendment in history to limit individual, constitutionally guaranteed
rights." This claim is flawed for two reasons. The first is that the Citizens United case extended
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A PEOPLE~1.~FoRTHE~~·AMERICAN,"" WAYno new rights to any individual citizens, with the singular exception of individual CEOs who
now enjoy the "right" to write checks from their corporate treasuries to advance or disparage
political campaigns. The right to spend our own money in politics was one already enjoyed byevery citizen.
The second problem is that, throughout American history, there have been loudcomplaints that progressive constitutional amendments strip certain people of preexisting rights.
The slavemasters and their apologists were adamant that the 13 th Amendment deprived them of
their property rights - and surely it did under existing law; similarly, many white males felt as if
the weight of their votes were diluted by the addition of black and women voters--and surely
they were; the opposition to the 16th Amendment on income tax was organized around property
rights and some people's aversion to taxes; and so on. It is simply false to say that kicking
corporate money out of political campaigns would be the first time that a constitutional
amendment would realign the balance of rights in our country or make some people feel as if
they are losing an edge in the legal system.
Plutocracy Distorts the Market as well as Our Politics
We have to face the fact that the new regime being developed by the Supreme Court isstraight-up plutocracy, rule by the wealthy, and its structural foundation is private corporate
wealth. Defenders of the regime like to point out that there are tens of thousands of corporationsin America, most of them small, but this is an irrelevant distraction from how the corporate"wealth primary" works in the real world. Major industries that have an "extractive" character
and a parasitic relationship on government-Wall Street, Big Oil, Big Pharma, major militarycontractors like Haliburton-<:ultivate a financial dependency in politicians which permits thecorporations to continue what economists call "rent-seeking" arrangements with the government.
These arrangements operate on a simple investment and return basis: corporations invest
several million dollars in campaigns and lobbying, collect an astounding return of hundreds ofmillions or billions of dollars in tax breaks, corporate welfare, corporate warfare, sweetheart
contracts, big bailouts, deregulation, and inside deals. This squalid form of "public policy" issplendid for the corporations involved but dismal for everyone else, including the smaller
businesses that do not have the finance capital to invest in the political system. A plutocratic
state denies both political justice and a fair and competitive market economy in which businesses
thrive by virtue of their creativity and initiative rather than the size of their campaign spending
and their stable of lobbyists. Adam Smith would be just as appalled as Thomas Jefferson andJohn Adams at this state of affairs.
America has a market economy, which has served us very well in many ways. But wecannot afford to have a total market society in which major corporate power is dominant in ourpolitics, superior to the voices ofthe people, and controlling of major public policy questions.
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A
,.JIIt"PEOPLEFOR THE.~·AMERICAN
r ~ WAY

We should want aU private corporations, even the larger ones, to succeed, innovate, create, thrive
and prosper, but never to govern and thereby thwart the wi\l- and replace the essential politicalsovereignty - of the people.

*******
Jamie Raskin is a professor of constitutional law at American University's Washington College of
Law and a Democratic State Senator in Maryland where he chairs the Special Committee on Ethics
Reform and serves as Majority Whip. He is the bestselling author of several books, including
Overruling Democracy: The Supreme Court versus the American People and We the Students:
Supreme Court Cases/or and About Students. He is also a Senior Fellow at People for the American
Way. He can be reached at Raskin@wcLamerican.edu.

July 20, 2012

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Public Campaign's Testimony for the Senate Judiciary
Subcommittee on the Constitution, Civil Rights and Human Rights:"Taking Back Our Democracy: Responding to Citizens United and theRise o/Super PACs"
July 24, 2012
Thank you for allowing Public Campaign to submit written testimony for the
Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights
hearing on "Taking Back Our Democracy: Responding to Citizens United and the Riseof Super PACs." Public Campaign is a national nonpartisan organization that works
to raise the voices of everyday people in our democracy through advocating
common sense campaign reforms and holding politicians accountable for actions
they do on behalf of their donors.

We see legislation like the Fair Elections Now Act, championed by Sen. Dick
Durbin (0-111.) and Rep. John Larson (D-Conn.), as one ofthe best responses to theSupreme Court's Citizens United decision. The bill would create a voluntary publicfinancing system that emphasizes small donor fundraising. At the federalleveI. sucha system has significant support: more than one-third of the US. House and onequarter ofthe US. Senate cosponsored the Fair Elections Now Act in the lastCongress to create a voluntary public financing system, and we commend Sen.
Durbin for his leadership on Fair Elections. But public financing is just one part of abroader democracy agenda, one that must also include increased disclosure ofpolitical contributions and a Constitutional amendment to overturn the Citizens
United decision. We appreciate the efforts of Sens. Tom Udall, Sanders, and Baucus

232
for each introducing a Constitutional amendment to address the Citizens United
decision.

Massive spending after Citizens United by shadowy outside groups has led to
the need for a Constitutional amendment, and the Supreme Court's flawed rulinghas significant consequences not only at the federal level, but also at the state level.
The secretive money spent in the Wisconsin recall election is a sign of things tocome, and shadow front groups will likely continue to spend huge amounts ofhidden money in states and localities, especially smaller ones with less expensive
media markets.

Certain states in particular saw a dramatic rise in outside spending after
Citizens United. In Maine, outside groups spent $5.3 million in 2010, compared to$1.3 million in 2006,1 an unprecedented increase for such a small state. Nearly $1.5
million of that 2010 total was spent on legislative races, more than double what wasspent ($629,271) on the comparable elections in 2006. Of the almost $1.5 million
total, $400,000 was spent by just one organization-the Republican State
Leadership Committee-targeting a handful of state Senators, including Deb
Simpson. The RSLC spent almost $200,000 in the Senate District 15 race between
Republican Lois Snowe-Mello and Democrat Deb Simpson, including more than$87,000 in negative ads against Simpson.

1 http://www.sunjournal.com/news/state/2011/12/24/report-2010-electionshowed-big-spike-outside-camp/1132096

233
At the federal level, the amount of secret and special interest spending has
increased even more dramatically. Through March 8, 2008, outside interests spentnearly $40 million in federal elections, versus almost $90 million by this same datein 2012.2 However, this doubling in outside spending doesn't mean that more
Americans are participating in the political process. Instead, just the mostprivileged and wealthy Americans are contributing millions of dollars, which drownout the voices of everyday Americans. Just 0.000063%-196 Americans-havecontributed more than 80% of the super PAC money spent in the presidential
elections so far in this cycle. Contributions given directly to congressional
campaigns follow a similar pattern: only 0.26% of Americans have given at least$200, only 0.05% have donated $2500 to any congressional candidate, and 0.01 %has contributed more than $10,000 in the election cycle.3
Since the Supreme Court continues to say that corporations have the samefirst amendment rights as do individuals, how can nurses, firefighters, and teachers,
each whose median salary is less than $70,000, have their voices heard? Of the 20
largest super PACs, the mean donation through June 18, 2012, is $61,372. 4 Nurses,
firefighters, and teachers certainly can't be expected to donate nearly all of theirsalary to a super PAC to have their voices heard. Instead, a Constitutional
amendment overturning Citizens United to help put citizens back in charge ofelections should be part of the discussion.

2 http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt571/pdf/CRPT-112hrpt571.pdf
3 http://www.theatIantic.com/politics/archive/2012/07 /big-campaign-spending-government-by-the-l/259599/#
4 http://www.demos.org/publication/auctioning-democracy-rise-super-pacs-and2012-election

234This debate is not just about campaign finance reform, though; it isfundamentally about who should be included: the many or the money? Everyday
Americans or just the wealthy? Five Supreme Court justices chose the money overthe many. Too often, many congressional Republicans are protecting wealthy
donors and their moneyed interests at the expense of hardworking Americans.
Congress must ensure that all Americans, not just the wealthy, have the opportunity
to participate in the political process and have their voices heard. Pursuing a
voluntary small-dollar matching system, coupled with robust disclosure and aConstitutional amendment, is the most comprehensive way to put everyday citizens
back in charge of elections.

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PO Box 70452 • Seattle, WA 98127-0452 • 206-784-2522 • washclean.org
Re: Hearing scheduled July 24, 2012, before the Constitution Subcommittee of the U.S.
Senate Judiciary Committee on proposals to amend the U.S. Constitution to remedy thedecision of the U.S. Supreme Court in Citizens United v. Federal Election Commission
Honorable Senator Richard Durbin, Chairman
U.S. Senate Subcommittee on the Constitution
Dear Senator Durbin:
On behalf of Washington Public Campaigns (WPC), I thank you and your colleagues on theConstitution Subcommittee of the Senate judiciary Committee for holding a hearing, scheduled
for July 24, 2012, on the most important issue facing our democracy today: Can our democracy
survive the tsunami of money being poured into our political campaigns by a small group of
extremely wealthy individuals and corporations?
The Supreme Court's decision in Citizens United v. FEC in January 2010, followed by the DC
Circuit Court decision in SpeechNow.org v. FEC in March 2010, has unleashed this flood ofmoney which is overpowering even the candidates' own campaign donations, which are still
limited.
WPC is a citizens' organization in the State of Washington with an original goal of establishing
publicly funded political campaigns in the State of Washington and for the U.S. Senate and U.S.
House of Representatives. WPC successfully promoted a 2008 state law, which authorizes local
governments (cities, counties, PUDs and port districts) to establish their own publicly-fundedpolitical campaigns. WPC is also working for the passage in Congress of the Fair Elections Now
Act, to provide public financing for U.S. House and U.S. Senate campaigns.
We have now concluded that in addition to promoting publicly funded political campaigns, wemust work for approval of the following goals, which have become necessary to preserving
democracy itself:
Overturning Citizens United v. F.E.C. and SpeechNow.org v. F.E.C. with a constitutional
amendment establishing that corporations do not have the constitutional rights of humanbeings, and money is not speech and that contributions and expenditures in political
campaigns, whether funneled through candidate campaigns or independent groups, may be
lawfully regulated by our elected state and federal representatives,
Enacting the DISCLOSE 2012 Act, which is currently before the Congress, calling for
greater transparency in campaign financing.

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Our members support many organizations such as Public Citizen, Common Cause, Free Speechfor People, Move to Amend, and People for the American Way, with whom we worked tosupport the City of Seattle's recent resolution urging Congress to propose to the states aconstitutional amendment of similar nature to that indicated above.
We remain committed to the America we once knew, where each person's voice had equal
weight in the marketplace of ideas, and money did not determine the outcome of elections.
We ask that a copy of this message be made a part of the hearing record.
For the WPC Board of Directors,

J(Jh,n 1Gin,
John E. King
President

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SUBMISSIONS FOR THE RECORD NOT PRINTED DUE TO VOLUMINOUS NATURE, PREVIOUSLY PRINTED BY AN AGENCY OF THE FEDERAL GOVERNMENT, OR OTHER CRITERIA DETERMINED BY THE COMMITTEE, LIST OF MATERIAL AND LINKS CAN BE
FOUND BELOW:

Torres-Spelliscy, Ciara, Assistant Professor of Law, Stetson Law,
Tampa, Florida, Part 1, see link: http://papers.ssrn.com/sol3/papers.cfm?abstract—id=2046832py.pdf

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