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58–420 PDF 2010

S. HRG. 111–621 

‘‘WE THE PEOPLE’’ ? CORPORATE SPENDING IN 

AMERICAN ELECTIONS AFTER CITIZENS UNITED 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

MARCH 10, 2010 

Serial No. J–111–79 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland, prepared statement ................................................................................................... 81 

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 18 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 15 

prepred statement ............................................................................................ 97 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepred statement ............................................................................................ 122 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 3 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island, 

politico article ....................................................................................................... 203 

WITNESSES 

Kendall, Douglas T., President, Constitutional Accountability Center, Washington, DC ............................................................................................................. 10 

Rosen, Jeffrey, Professor of Law, George Washington University, and Legal 

Affairs Editor, The New Republic, Washington, DC ......................................... 5 

Smith, Bradley A., Chairman, Center for Competitive Politics, Alexandria, 

Virginia and Josiah H. Blackmore III/Shirley M. Nault Designated Professor of Law, Capital University Law School, Columbus, Ohio ...................... 7 

QUESTIONS AND ANSWERS 

Responses of Douglas T. Kendall to questions submitted by Senators Cornyn, 

Hatch and Sessions .............................................................................................. 39 

Responses of Jeffrey Rosen to questions submitted by Senators Cornyn, Hatch 

and Sessions ......................................................................................................... 49 

Responses of Bradley A. Smith to questions submitted by Senators Sessions, 

Cornyn and Hatch ................................................................................................ 59 

SUBMISSIONS FOR THE RECORD 

Arnebeck, Clifford O., Jr., Columbus, Ohio, statement ........................................ 77 

Clements, Jeffrey D., Clements Law Office, Concord, Massachusetts, statement ...................................................................................................................... 83 

Institute for Justice, Arlington, Virginia, political books ..................................... 103 

Kendall, Douglas T., President, Constitutional Accountability Center, Washington, DC ............................................................................................................. 105 

Law Professors Letter to Senators Leahy and Sessions, Citizens United .......... 119 

Organization for International Investment, Washington, DC, statement .......... 125 

Rosen, Jeffrey, Professor of Law, George Washington University, and Legal 

Affairs Editor, The New Republic, Washington, DC, statement ...................... 129 

Smith, Bradley A., Chairman, Center for Competitive Politics, Alexandria, 

Virginia and Josiah H. Blackmore III/Shirley M. Nault Designated Professor of Law, Capital University Law School, Columbus, Ohio, statement 

and attachments ................................................................................................... 140 

(1) 

‘‘WE, THE PEOPLE’’ ? CORPORATE SPENDING 

IN AMERICAN ELECTIONS AFTER CITIZENS 

UNITED 

WEDNESDAY, MARCH 10, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:08 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feingold, Schumer, Cardin, Whitehouse, Klobuchar, Kaufman, Specter, Franken, Sessions, Hatch, 

and Cornyn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Today’s hearing is another in 

a series we have held that focus on how recent activist decisions 

by very narrow majorities on the Supreme Court affect the lives of 

hard-working Americans. We did this, of course, on the Lilly 

Ledbetter case where the Supreme Court basically said women 

could be paid less than men for the same kind of work. And in a 

case called Citizens United v. Federal Election Commission, five of 

the nine Justices acted to overturn a century of law designed to 

protect our elections from corporate spending. They ruled that corporations are no longer prohibited from direct spending on political 

campaigns. They extended to corporations the same First Amendment rights in the political process that are guaranteed by the Constitution to individual Americans. 

And I believe the Citizens United decision turns the idea of Government of, by, and for the people on its head. It creates new rights 

for Wall Street at the expense of the people on Main Street. It 

threatens to allow unprecedented influence from foreign corporations into our elections. You can imagine what China could do with 

an American subsidiary if they wanted to influence an election, 

perhaps to defeat somebody who would criticize the use of basically 

slave labor or unsafe practices in China. And I think Americans 

concerned about fair elections have rightfully recoiled. 

Our Constitution begins with the words, ‘‘We, the People of the 

United States.’’ In designing the Constitution, States ratifying it, 

adopting the Bill of Rights, and creating our democracy, we spoke 

of and thought of and guaranteed fundamental rights to the American people, not to corporations. 

2 

There are reasons for that. Corporations are not the same as individual human Americans. Corporations do not have the same 

rights, the same morals, or the same interests. And corporations 

cannot vote in our democracy. 

Teddy Roosevelt proposed the first campaign finance reforms, 

limiting the role of corporations in the political process. Those reforms, proposed by a Republican President, were preserved and extended through another century of legal developments that followed. Eight years ago, it was these same values that informed bipartisan efforts in Congress, on behalf of the American people, to 

enact the landmark McCain-Feingold Act, and that legislation 

strengthened the laws protecting the interests of all Americans by 

ensuring a fair electoral process where individual Americans could 

have a role in the political process, regardless of their wealth. 

Six years ago, in McConnell v. Federal Election Commission, the 

Supreme Court upheld the key provisions of the McCain-Feingold 

Act against a First Amendment challenge. Now, a thin majority of 

the Supreme Court, made possible by President Bush’s appointment of Justice Samuel Alito, reversed course on the same question. In doing so, this activist majority discarded not only the 

McConnell decision, but ran roughshod over longstanding precedent, and took it upon itself to effectively redraft our campaign finance laws. As Justice Stevens noted in dissent, ‘‘The only relevant 

thing that has changed since . . . McConnell is the composition of 

the Court.’’ The Constitution has not changed. In fact, nowhere in 

Constitution do we even mention corporations. 

At the core of the First Amendment is the right of individual 

Americans to participate in the political process—to speak and, 

more crucially, to be heard. That is what the campaign finance 

laws were designed to ensure—that Americans can be heard and 

fairly participate in elections. Five Justices overruled Congressional efforts to keep powerful, moneyed interests from swamping 

individuals’ voices and interests. They showed no deference to Congress and little to the precedents of the Supreme Court. 

Now, Vermont is a small State. We have only 660,000 people. It 

is easy to imagine corporate interests flooding the airwaves with 

election ads and transforming even local elections there. It would 

not take more than a tiny fraction of corporate money to outspend 

all of our local candidates, both Republicans and Democrats combined. If a local city council or zoning board is considering an issue 

of corporate interest, why would the corporate interests not try to 

drown out the views of ordinary Vermonters, hard-working citizens 

though they are? I know that the people of Vermont, like all Americans, take seriously their civic duty to choose wisely on election 

day. Vermonters cherish their critical role in the democratic process. They are staunch believers in the First Amendment. 

Vermont, in fact, would not ratify the Constitution until the 

adoption of the Bill of Rights in 1791. I think the rights of 

Vermonters and all Americans to speak to each other and to be 

heard should not be undercut by corporate spending. And I fear 

that is exactly what will happen unless both sides of the aisle— 

both Republicans and Democrats have a stake in this, and they 

should join with the President to try to restore the ability of every 

3 

American to be heard and effectively participate in free and fair 

elections. 

When the Citizens United decision was handed down, I said that 

it was the most partisan decision since Bush v. Gore. As in Bush 

v. Gore, the conservative activists on the Supreme Court unnecessarily went beyond the proper judicial role to substitute their own 

personal preferences for the law. With all the talk about judicial 

modesty and judicial restraint from the nominees at their most recent confirmation hearings, those nominees of President Bush, we 

have seen all a Supreme Court these last 4 years that has been 

anything but modest and restrained. 

I am just concerned that this case is going to open the floodgates 

for corporate spending. And in these tough economic times, I believe individual Americans should not have their voices drowned 

out by unfettered corporate interests. I am also very concerned that 

this decision is going to invite foreign corporate influence into our 

elections. We are in unchartered territory, and I am concerned 

about what this might do. 

Senator Sessions, please go ahead, sir. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. 

I see my colleague Senator Cornyn. I know he would like to 

share a few opening comments. Maybe we could swap out on that. 

If you would think about it, I would appreciate it. 

The first thing, on Lilly Ledbetter, the Supreme Court had a responsibility to interpret a poorly written Congressional statute on 

the statute of limitations. They ruled the way they felt was correct. 

I think it was a decision that they could very well be justified. And 

then Congress acted promptly and changed it and clarified it. That 

is the way the system is supposed to work, and I do not think we 

should attack the Court’s integrity basically and accuse them of 

being political agenda-oriented on that case because we may have 

disagreed with how they interpreted a rather unclear statute. 

I think Citizens United was a very important affirmation of a 

fundamental American liberty, it seems to me, enshrined in the 

First Amendment that ‘‘Congress shall make no law’’ infringing the 

right of freedom of speech. And I think the Court simply said an 

assembly of people can have the right to speak also. And I think 

the criticisms are overwrought, and it should not be nearly as personal as it is on the Court, and that this is a legitimate interpretation of the words and spirit of the First Amendment which favors 

the liberty of advocacy in a very clear way. 

The sacred right of free speech is enshrined in our Republic from 

the beginning and one that becomes stronger when we protect it 

even for those who we disagree with, and we have a tradition of 

that. So I think it would be a good opportunity today to look at it 

honestly and accurately and talk about the Supreme Court’s ruling 

that appeared to me to be strengthening the First Amendment 

rather than constricting the First Amendment. 

I am concerned, though, that there has been too much alarmist 

rhetoric that has been flying around since this decision, and I hope 

4 

that today’s hearing can shed some light and not misrepresent the 

nature of the decision or impugn the integrity of the Justices. 

I do not think the Court is above criticism. I think they can be 

criticized. But I got to say, I was disappointed—dismayed, really— 

to hear the President of the United States mischaracterize the decision of the Supreme Court and scold the members of the Court in 

his State of the Union address for something they did not do, 

mischaracterized the case. 

The President claimed that the decision ‘‘reversed a century of 

law’’ and ‘‘opened the floodgates’’ for special interests and foreign 

powers to ‘‘bankroll American elections.’’ And I do not believe that 

was an accurate statement from an individual who should know 

better because he has taught constitutional law. If you are going 

to challenge the Supreme Court in the presence where they have 

no opportunity to respond and defend themselves, you ought to be 

absolutely accurate in your criticism. They are not above criticism. 

It does not affect their independence. They have got a lifetime appointment. So I am not worried about their independence. Sometimes they wail about it. They can be criticized, but it ought to be 

honest and fair. 

I think the President was in error in a number of ways. It is critical for us to remember Citizens United found that independent expenditures, advertisements, pamphlets, books, documentaries produced independently from a party or candidate’s campaign cannot 

be suppressed under the First Amendment simply because the 

funds for this political speech came from the coffers of a labor 

union or a corporation. Citizens United did not change the laws restricting corporate contributions to political parties or to campaigns. And let me say that again. It did not lift restrictions on 

contributions to political campaigns from corporations or labor 

unions. 

As the Court has recognized for 30 years, there is a difference 

between political campaign contributions, which carry a risk of a 

quid pro quo type corruption—and there is some sense of that. If 

you give a large amount of money to a candidate for their campaign, it has implications of a quid pro quo. But that has been held 

to be different from independent, uncoordinated expenditures by individuals, advocacy groups, or other associations who wish to make 

their views heard to the American people even before an election. 

When do you want to speak out if it is not before an election? 

So the President’s charge right there before all the American people that the Court had opened the door to special interests, 

bankrolling elections, I think was very misleading. It is not about 

independent—it is about independent political speech, not about 

filling the campaign coffers of a party or a candidate. 

Second, it did not reverse a century of law because there was no 

law limiting independent expenditures until 1947, when Congress 

passed the Labor-Management Relations Act. That Act was passed 

over the veto of our Democratic President Harry Truman who 

warned that the law was ‘‘a dangerous intrusion on free speech.’’ 

So critics of the Citizens United decision like to point to the Tillman Act of 1907 as the first campaign finance restriction, but the 

Tillman Act barred contributions; it did not bar independent political speech funded by labor unions or corporations. Citizens United 

5 

did reverse the 1990 decision in Austin, but the majority opinion 

and the concurrence by Chief Justice Roberts clearly explained the 

Austin decision itself was an aberration. It was a departure from 

the Court’s earlier First Amendment cases and a case based on a 

legal theory really that the Obama administration attorneys could 

not bring themselves to defend, really. 

Third, the President’s statement and accusations by others who 

have echoed him claim that the Supreme Court made the political 

system vulnerable to independence from foreign corporations, but 

the Court explicitly noted in Citizens United it was not changing 

the Federal law that already bans foreign corporations from participating in the Federal process. 

The constitutional issues identified by the Court I do not think 

should surprise us. Many of us will recall that we have spent years 

debating campaign finance reform. A number of our members offered a constitutional amendment to amend the First Amendment, 

to restrict the First Amendment, in order to explicitly allow Congress to pass these kind of spending limits on advocacy and politics. And pretty soon that was all voted down, and we have not 

heard from that again, thank goodness. But in a way, this is a 

similar thing to ask the Court to affirm a statute that does the 

same thing. And the Court was worried about it. 

As I said at the time that amendment was offered, it was an astounding, a thunderous, a remarkable change in policy for America. 

And I believed it then, and I think in the long run we are better 

off allowing this cauldron of competing interests to express themselves than to create a Government power to pick and choose what 

group of people can express themselves in a campaign. 

So, Mr. Chairman, I do not know, maybe I am wrong about this. 

We have got some great witnesses today. Let us talk about it. But 

I absolutely believe that this is not the kind of open-and-shut question people say. At best, the critics ought to acknowledge this is a 

close call. And, in fact, I think they would have to admit that if 

the Court had ruled otherwise, the power of people to collectively 

participate in campaigns and speak out freely in America would 

have been constrained. Therefore, I think the Court did right. 

Thank you. 

Chairman LEAHY. Well, let us give the panel then a chance to respond. We will start with Professor Jeffrey Rosen who teaches constitutional law at George Washington University. He has authored 

several books on the Supreme Court. He is Legal Affairs editor for 

The New Republic. 

Mr. Rosen, good to have you here. 

STATEMENT OF JEFFREY ROSEN, PROFESSOR OF LAW, 

GEORGE WASHINGTON UNIVERSITY, AND LEGAL AFFAIRS 

EDITOR, THE NEW REPUBLIC, WASHINGTON, DC 

Mr. ROSEN. Thank you very much, Senator Leahy and members 

of the Committee. Thank you for inviting me to testify in this important hearing. 

The 5–4 ruling in Citizens United has been strongly opposed by 

Americans of both political parties: last month, in a Washington 

Post-ABC News poll, 80 percent of respondents said they opposed 

the Court’s decision to allow unregulated corporate spending in 

6 

general elections, with relatively little difference between Republicans and Democrats. That is not a surprise during a time of financial crisis when the influence of money in politics—Justice 

Louis Brandeis called it ‘‘our financial oligarchy’’—is the most 

pressing political question of the day. 

Brandeis, who denounced the ‘‘curse of bigness’’ that led large 

corporations to take risks with other people’s money, and also 

thought that the purpose of the First Amendment was to make 

men and women free to develop their faculties—not corporations 

but men and women—would not have approved of the Citizens 

United decision, and his prescient book ‘‘Other People’s Money and 

How the Bankers Use It’’ makes that clear. 

You asked me to testify about the constitutional implications of 

the decision. Unfortunately, the implications are not encouraging. 

Senator Sessions, you ask critics to acknowledge that this is a 

close case, and you express concern about people impugning the integrity of the Court. I agree it is a close case. I agree that many 

civil libertarian liberals support the result. And I believe that the 

Justices made their decision in good faith. It was a principled decision. 

What it was not is a restrained decision. It was not restrained 

by any measure of restraint that the Justices of the Roberts Court 

have embraced. It was precisely the kind of divisive and unnecessarily sweeping decision that Chief Justice Roberts pledged to 

avoid in his confirmation hearings and after, when he said he 

would try to promote narrow, unanimous opinions, rather than deciding hotly contested questions by ideologically polarized, 5–4 

votes. 

Chief Justice Roberts laid out this vision shortly after he took office. He did it at a commencement speech at Georgetown University Law Center and in interviews with several people, including 

me, and he said that he was concerned that his colleagues were 

acting more like law professors than members of a collegial court. 

He said this was bad for the Court and bad for the country in a 

polarized age. And he said he would embrace the vision of his 

greatest predecessor, John Marshall, by trying to promote narrow, 

unanimous opinions. 

I was impressed by the Chief Justice’s concern about the bipartisan legitimacy of the Court and have no doubt that he meant 

what he said. I watched with interest his efforts to promote unanimity over the past few terms, and he met with mixed success. In 

the 2007 term, the number of 5–4 decisions soared to 33 percent, 

a 10-year high. It dipped up and down in subsequent years. But 

the most striking area in which Chief Justice Roberts has been 

able to achieve a relative measure of unanimity is in cases affecting 

business interests which now represent 40 percent of the Court’s 

docket. Seventy-nine percent of these cases are decided by margins 

of 7–2 or better, and the U.S. Chamber of Commerce, which represents the unified interests of American business, has had remarkable success before the Roberts Court during the past few 

years. In 2006 the Chamber’s litigation center filed briefs in 15 

cases and won 13 of them, the highest percentage of victories in the 

center’s 13-year history. 

7 

So this was the record before Citizens United, divisive decisions, 

5–4, in cases involving affirmative action, voting rights, abortion, 

campaign finance, and religion, and relative unanimity in these 

business cases. 

Citizens United is disappointing, Senator Sessions, even to those 

critics like me who acknowledge that it is principled, because it 

was so unnecessary. You could have protected the free speech 

rights of producers of ‘‘Hillary: The Movie’’ by holding that Congress never intended to regulate video on demand or groups with 

minimal corporate funding. But the Court chose not to take that 

narrow route. It is a broad, sweeping opinion, much of the kind 

that Chief Justice Earl Warren might have issued. It is 

unconnected to arguments about constitutional original understanding, which my colleague Doug Kendall will discuss, the traditions of Congress, and it is rather radical in uprooting precedents 

that date back for more than a century. 

Why should the public care that the Roberts Court now seems 

willing to impose these ideologically divided, constitutionally polarizing opinions rulings? It is because when the Court tries to challenge the public on matters of economic justice that the public 

cares intensely about, it often provokes backlashes that can harm 

the Court and the country. We know this from the experience during the 1930s, and there is a serious question about whether that 

historical error will be repeated. It is impossible at the moment to 

tell precisely what the future will bring. I still continue to hope 

that Chief Justice Roberts has enough political savvy to avoid this 

backlash, but there is no doubt that the stakes could not be higher. 

His success or failure will turn on his ability to make good on his 

promise of narrow, unanimous decisions. We have seen narrow conservative majorities strike down economic regulations in the name 

of corporate rights before, and it always ends badly for the Court. 

Thank you so much. 

[The prepared statement of Mr. Rosen appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Professor Rosen. 

Next we have Bradley Smith, Professor Bradley Smith, who 

teaches law at Capital University Law School in Ohio. He served 

on the Federal Elections Commission and is currently Chairman of 

the Center for Competitive Politics. 

Professor Smith, thank you for taking the time. Please go ahead. 

STATEMENT OF BRADLEY A. SMITH, CHAIRMAN, CENTER FOR 

COMPETITIVE POLITICS, ALEXANDRIA, VIRGINIA, AND JOSIAH H. BLACKMORE II/SHIRLEY M. NAULT DESIGNATED 

PROFESSOR OF LAW, CAPITAL UNIVERSITY LAW SCHOOL, 

COLUMBUS, OHIO 

Mr. SMITH. Thank you, Chairman Leahy, Ranking Member Sessions, and members of the Committee. I appreciate the opportunity 

to be here this morning. 

Rarely does a decision provoke as much—I cannot use another 

word but ‘‘hysteria’’ as Citizens United. For example, many States 

which have long allowed unlimited corporate spending—Vermont is 

one of those States—have suddenly swept in, in great alarm in 

their legislature, to say, ‘‘Oh, now we must do something.’’ A month 

8 

ago—well, I guess I should say 2 months ago, nobody in Vermont 

was clamoring to change the State’s election law to prevent unlimited corporate spending in campaigns. Now because the Supreme 

Court comes down merely saying, ‘‘Vermont, this case does not affect you at all,’’ the people, the legislature of Vermont seems to be 

freaking out, for lack of another word. 

Chairman LEAHY. Professor Smith—and this will come out of my 

time—why don’t you let me talk about the reactions of the Vermont 

Legislature? I think I understand it one heck of a lot better than 

you do. 

Mr. SMITH. My point, Mr. Chairman, is that there has been a 

great deal of reaction by people, and I could use another State. I 

could use Maryland if you would prefer. 

Chairman LEAHY. These are a group of very hard-working citizen 

legislators. They do not freak out, to use your expression. This is 

very much of a typical, far more taciturn New England legislature. 

We do not freak out, to use your term. 

Mr. SMITH. Senator, I have been called here, I think, to offer my 

expert opinion. In my expert opinion, they are freaking out. 

Now, to continue on, let us talk about where else we stand here. 

This decision was one that is clearly correct, and Citizens United 

had to win the case, and pretty much everybody agrees with that. 

All you have to do to come to that conclusion is look at what the 

position of the U.S. Government was. It was the position of the 

U.S. Government that under the Constitution it could prevent a 

publisher, such as Random House or the Free Press or Simon and 

Schuster, from publishing a 500-page book containing even one line 

advocating the election or defeat of a candidate. I am not sure that 

many people really want to defend that position. 

It was the position of the U.S. Government that it could prevent 

a corporation, such as Amazon or Barnes & Noble, from using technology for Kindle and Nook to distribute books. I do not think 

many people think that is a correct interpretation of the First 

Amendment. 

It was the position of the U.S. Government that it could prevent 

a union from hiring a person to write a book, maybe something like 

‘‘Why Working People Should Support the Obama Agenda,’’ and 

that was struck down or not allowed by the Court to have that 

kind of agenda in the Court. 

It was proposed, of course, that you could limit the discrimination of Citizens United’s movie, and I think, again, that is something that people clearly disagreed with. In fact, when we actually 

look at what the public feels and asks them specifically do they 

agree with any of those conclusions that the Government actually 

argued in this case, as opposed to asking them sort of a loaded 

question—Do you think corporations should spend unlimited 

sums?—if we actually asked them, by a 3–1 majority, as we did in 

a poll at Citizens United—or I mean at the Center for Competitive 

Politics, we found that by a 3–1 margin they agreed that the company should be able to air ads. By a 3–1 margin, they agreed that 

they should be able to run movies by video on demand technology. 

In fact, there was much more support for Citizens United’s position in this case than there was when we asked them if you should 

censor the press, in which 30 percent favored censoring the press, 

9 

but only 17 percent favored censoring Citizens United from distributing its movie. 

So you are playing with fire when you start saying—working up 

hysteria about people participating in these things. Animosity toward the institutional press, which I think everybody thinks must 

be protected, is much, much higher. 

Now, in terms of the activism of the Court’s decision, there is a 

problem with activism, and it comes from the Court’s dissenters. 

The Court’s dissenters would have swept away 200 years of precedent. We have quotes in Mr. Kendall’s testimony and I have quoted 

from Dartmouth College v. Woodward about how corporations are 

artificial beings and exist only in the contemplation of law. That 

is cited all the time now. Let us remember, Dartmouth College v. 

Woodward found in favor of corporate rights. It is remember, it is 

still included in law books precisely because it is an affirmation of 

the power of citizens against the Government, not an affirmation 

of Government power to regulate people simply because the forum 

in which they choose to associate—and those association rights are 

very important here—is a corporate forum. 

And the dissent offers no principled basis for how it would distinguish. Obviously, corporations have many rights. I do not think 

that anybody on the panel—I hope—believes that you could simply 

take corporate property without providing them with due process. 

I hope you do not think that you can just go to Capital University, 

which is a corporation, and take over our dorms and quarter soldiers there because we are a corporation and we have no rights. 

Clearly, corporations have rights, and the question is: What rights 

do they have? And individuals, I think, have a right to gather and 

to speak about issues that are important to them. 

Many people on this panel attack corporations. Many people in 

the public attack corporations. And the citizens who own those corporations have a right to speak in return. And the dissenters in 

this case would have overturned over 100 years of precedent and 

dozens and dozens of cases to get there. 

So let us stay focused on what is really at stake, and I think if 

we do that, we will see that this was a very, very rational decision, 

one that almost everybody would agree with the specific holding. 

If it went too far in certain small particulars, it is fairly easy to 

do legislative fixes on those particulars. 

Thank you very much. 

[The prepared statement of Mr. Smith appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Mr. Smith, and I will 

be interested in seeing if anybody in the Vermont Legislature cares 

to see how a professor at Capital University Law School feels about 

their reactions. 

Doug Kendall is the Founder and President of the Constitutional 

Accountability Center. He has co-authored several books and articles about federalism and the courts. 

Please go ahead, Mr. Kendall. 

10 

STATEMENT OF DOUGLAS T. KENDALL, PRESIDENT, CONSTITUTIONAL ACCOUNTABILITY CENTER, WASHINGTON, DC 

Mr. KENDALL. Thank you, Chairman Leahy, for holding this important hearing on the Constitution and the Citizens United ruling 

and for inviting me to testify. 

I am the President of Constitutional Accountability Center, a 

non-profit think tank, law firm, and action center dedicated to the 

Constitution’s text and history. The center is releasing today a report entitled ‘‘A Capitalist Joker: The Strange Origins, Disturbing 

Past, and Uncertain Future of Corporate Personhood in American 

Law,’’ which examines the Constitution’s text and history and the 

Supreme Court’s treatment of corporations from the founding era 

to the Court’s ruling in Citizens United. The Constitution’s text reflects a fundamental difference between 

corporations and the ‘‘We the People’’ identified in the Preamble of 

the Constitution. As artificial entities, it is awkward, if not nonsensical, to describe corporations engaging in the ‘‘freedom of speech,’’ 

practicing the ‘‘free exercise’’ of religion, ‘‘peaceably . . . 

assembl[ing],’’ or ‘‘keep[ing] and bear[ing] Arms.’’ 

The debate about how to treat corporations—which are never 

mentioned in the Constitution’s text, yet play an ever-expanding 

role in American society—has raged since the founding era. The 

Supreme Court’s answer to this question has long been a nuanced 

one: Corporations can sue and be sued in Federal courts and they 

can assert certain constitutional rights, but they have never been 

accorded all the rights that individuals have, and have never been 

given rights of political participation. 

The Court, under Chief Justice John Marshall and many times 

since, has emphasized that because corporations are artificial entities and receive special privileges, such as perpetual life and limited liability, they are subject to greater regulation by the State. 

Only once before, during the darkest days of the Lochner era, has 

the Supreme Court seriously entertained the idea that corporations 

are entitled to the same constitutional rights enjoyed by ‘‘We the 

People.’’ And even in the Lochner era, these equal rights were 

never extended to the political process. 

The idea of equal constitutional rights for corporations has a 

truly bizarre origin. In the 1886 case of Santa Clara v. Southern 

Pacific Railroad Company, the Supreme Court reporter decided to 

include in his published notes a remark by Chief Justice Waite to 

the effect that corporations were persons within the meaning of the 

Constitution’s Equal Protection Clause. Through this highly irregular move, the idea that corporations were persons was introduced 

into American law. 

Eleven years later, in Gulf Railroad v. Ellis, the Court cited 

Santa Clara in holding that ‘‘a State has no more power to deny 

to corporations the equal protection of the law than it has to individual citizens.’’ This ruling, combined with other important rulings that same year, ushered in the Lochner era, a period today almost universally condemned as one of the darkest eras in Supreme 

Court history. 

In 1937, the Supreme Court recognized its errors, and the 

Lochner era’s constitutional revolution came crashing to a halt. 

Virtually every aspect of the Lochner era’s protection of corporate 

11 

constitutional rights was repudiated by the Court, with the Court 

ultimately dismissing the idea of equal rights for corporations 

unanimously as ‘‘a relic of a bygone era.’’ 

In the face of these losses, corporations started aggressively 

fighting back. In 1971, Lewis Powell—a Virginia corporate lawyer 

who would soon be nominated to the Supreme Court—wrote a now 

famous memorandum to the Chamber of Commerce advising that 

corporations look to relief in the courts, noting that ‘‘the judiciary 

may be the most important instrument for social, economic, and political change.’’ 

Powell’s strategy started to come to fruition just 7 years later in 

First National Bank of Boston v. Bellotti, when Justice Powell authored a 5–4 ruling for the Supreme Court that struck down limits 

on a corporation’s ability to oppose ballot initiatives under the First 

Amendment. 

Though deeply problematic, Bellotti was expressly limited to ballot initiatives, and two subsequent rulings held that the Constitution does not grant corporations the right to spend unlimited 

amounts of money to favor the candidates of their choice. 

Citizens United wiped these later rulings off the books, and while 

the Citizens United majority offered reasons for its decision, none 

of them is persuasive or comes close to justifying the momentous 

changes in constitutional law ushered in by its opinion. 

Corporations do not vote. They cannot run for office, and they are 

not endowed by the Creator with inalienable rights. We the people 

create corporations, and we provide them with special privileges 

that carry with them restrictions that do not apply to living persons. These truths are self-evident, and it is past time the Supreme 

Court got this right. 

Thank you. 

[The prepared statement of Mr. Kendall appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Mr. Kendall, let me just follow up on this. Justice Sandra Day 

O’Connor recently spoke about the risks posed to our independent 

judiciary by the millions of dollars flowing into State judicial campaigns. Last year, the Court seemed to share that view of the potential massive corporate spending to distort elections by handing 

down a case called Caperton v. Massey. In fact, John Grisham 

wrote a book that sort of referred to that. 

In that case, Justice Kennedy wrote that the risk of bias due to 

campaign contributions in a State judicial election meant that the 

judge was wrong not to recuse himself from deciding a case involving a defendant who spent $3 million to elect him to the bench. I 

found it interesting. We do not elect judges in Vermont. Our State 

Legislature is pretty staid and conservative, and it allows them to 

be appointed with consent by the Governor. 

Why do you believe the Supreme Court only months later in Citizens United did not apply these same concerns and obvious logic 

to corporate spending? It just seemed after Caperton it ruled differently. 

Mr. KENDALL. I agree, Senator Leahy. And what I actually find 

most disturbing about the ruling in Caperton is that the four dissenting Justices actually believed that there was no problem with 

12 

the extreme factual circumstances, there was no violation of the 

Due Process Clause in that case. 

I think Justice Kennedy was obviously the swing vote in 

Caperton and Citizens United, and I think what he would say is 

that there is a difference between the obligations of a judge to 

recuse under the Due Process Clause and the First Amendment 

rights of corporations to spend unlimited amounts in elections. But 

I do not think those two issues can be separated that easily. The 

reason the judge has an obligation to recuse is because of how 

much money the corporation is spending in the election, and I 

think the reasons for recusal also support the legislature’s decision 

in States around the country to limit corporate campaign expenditures in judicial elections. And the great irony of the pattern that 

you reflect where the Court requires recusal in the Caperton case 

and strikes down limits on corporate campaign expenditures in 

elections in States around the country is—the Court is basically 

saying there is a huge problem here, but you, Congress, you, States 

across the country, cannot do anything about it. 

Chairman LEAHY. It is interesting, because she was on the 

Court, I believe 6 years ago, when the McCain-Feingold Act’s restrictions on corporate campaign spending were declared constitutional. Now she is off, and so 6 years later, basically we have a different answer. 

I am wondering what this does for the ability of State and local 

governments to police their own elections. We have 24 States that 

have laws restraining corporate spending in elections. Some of 

these laws date back 100 years. Others have laws that they allow 

corporate spending, but they restrict the amount that can be spent. 

Are these laws all called into question now? 

Mr. KENDALL. I think they are called into question, Senator 

Leahy. I think that is one of the dramatic impacts of this ruling. 

And I think as you mentioned in your opening statement and Justice Stevens said in dissent, the Constitution has not changed in 

the last 7 years, the law has not changed. The only relevant thing 

that has changed is the membership of the Court. And it is really 

more dramatic than what has happened over the last 7 years. 

If you take and put side by side the Supreme Court’s majority 

opinion in Citizens United and the ruling by a unanimous Court 

written by Justice Rehnquist in a 1982 case called FEC v. National 

Right to Work Committee—which is a case that upheld limits on 

the ability of corporations to collect donations for PACs. If you put 

those two opinions side by side, I think what you see is that not 

a single member of the Court in 1982 would have signed on to the 

majority ruling in Citizens United today, which is how dramatically 

the Court has changed on these issues. 

Chairman LEAHY. Well, in fact, on that, Professor Rosen has in 

his book, ‘‘The Most Democratic Branch’’—you argue that the judiciary more than any other branch of Government most reflects the 

views of mainstream Americans. Would Citizens United be consistent with that? 

Mr. ROSEN. It is not consistent, Senator Leahy. It seems ironic 

that the Court tends over history to reflect rather than challenge 

the constitutional views of the majority of Americans. But that is 

13 

the case. There is a wonderful new book by Barry Friedman, ‘‘The 

Will of the People,’’ that makes this case in even greater detail. 

What is so striking about the history is on the very few occasions 

when the Court has challenged the views of the majority of Americans on things they care intensely about, it has often provoked 

backlashes that necessitated judicial retreat. That was the lesson 

of the Dred Scott decision before the Civil War. It is the entire lesson of the legacy of the progressive era in the 1930s when a narrow 

group of five conservative Justices thought they could impose this 

contested vision of corporate rights on the country, provoking President Roosevelt’s court-packing threat and the judicial retreat. And 

that is what makes Citizens United such an outlier. Eighty percent 

opposition shared similarly by Republicans and Democrats? This is 

very, very unusual for the Supreme Court. 

Now, Mr. Smith has his own poll which shows more favorability, 

but he did not ask the relevant question. You did not ask, Mr. 

Smith, ‘‘Do you support lifting all Government limitations on corporate spending from general treasury funds in U.S. elections? ’’ 

And on that proposition, it is not a surprise that the public is opposed to this because it so goes against this strong strain in our 

history. Doug Kendall’s report is eloquent about how the suspicion 

of monopolies is deeply rooted in our history—and this is another 

important distinction. It is not opposition to all corporate forms. It 

is big money, the curse of bigness. It is investment banks and 

Exxon. That is what people like Louis Brandeis and Theodore Roosevelt were concerned about. Franklin Roosevelt was concerned 

about it. And the American people are obviously centrally concerned about this during a time of economic crisis. 

So for all those reasons, Senator Leahy, this is not consistent 

with the general sensitivity of the Court to the views of the American people. 

Chairman LEAHY. Thank you, and my time has expired, and I 

yield to Senator Sessions. 

Senator SESSIONS. Well, Mr. Rosen, when you come to fundamental rights such as free speech, surely you would not contend 

that we ought to run a poll to decide how that is done. I think 80- 

plus percent believe that the act of burning the American flag is 

not speech and thinks that the Supreme Court was wrong on that. 

And the free speech advocate group on the Court was the same one 

basically that voted for this, with some exceptions, I suppose. 

I will ask Mr. Kendall and Mr. Rosen this. In Mr. Smith’s written testimony for today, he noted that the Obama administration 

in this case, in their arguments before the Court, took the position 

that the Federal Government and/or the States could prevent a corporate publishing house, such as Simon and Schuster, from publishing or distributing a book if that book contains a single sentence opposing a candidate for political office. Mr. Smith states in 

his testimony that he would like to know whether the other members of the panel agree. 

So I guess I would ask you. Do you think that if your view of 

the First Amendment was in place that the Solicitor General’s Office for the Obama Department of Justice is correct and that you 

would favor the ability of the Government to limit those kind of 

publishing events? 

14 

Mr. ROSEN. Well, I certainly would not, Senator Sessions, and I 

do not think that the Obama administration would either. It 

seemed to me that in the oral argument Solicitor General Elena 

Kagan explicitly distinguished books and media from the questions 

at issue in this case and resisted the hypotheticals about banning 

books. 

But one thing is clear, Senator. It would have been easy for the 

Roberts Court to carve out an exception that would have completely protected books and the media and avoided all of the parade 

of horribles that Mr. Smith makes in his—— 

Senator SESSIONS. Well, I do not know. If you—— 

Mr. ROSEN [continuing]. Testimony. 

Senator SESSIONS. If a corporation cannot produce a movie, why 

can’t—if they can be prohibited from producing a movie, why can’t 

they a book? Mr. Kendall—— 

Mr. ROSEN. Could I just say—respond to—— 

Senator SESSIONS. Wasn’t that the whole point of the first oral 

argument? When that question was raised and the Solicitor General admitted it contained—it could constrain the publishing of 

books by Simon and Schuster or any other group, that that is what 

caused the Court to have a new argument and to state explicitly 

they were concerned about the Austin case? 

Mr. ROSEN. In the second argument, the Solicitor General explicitly responded to that. She disavowed a desire to ban books. And 

Justice Stevens charges in his dissent that the only reason the 

Court asked for re-argument was because it was determined to 

overrule Austin, that it was really reaching out for this question on 

its own. 

Senator SESSIONS. Professor Kendall. 

Mr. KENDALL. There is a hard, narrow question about whether 

the specific 90-minute documentary, which is fairly viewed as a 90- 

minute campaign ad against Hillary Clinton, was covered within 

the act. And if the Court had simply ruled on the basis that it was 

not, I think that we would not be here. We would not be having 

this argument. 

Senator SESSIONS. But isn’t it true that a ruling on that matter— 

I just would like to ask a follow-up legitimately with him. Isn’t it 

true that that implicated, though, these other questions? It would 

be difficult to separate that issue from the one the Court ultimately 

decided. Surely you would agree that implicated those issues significantly. 

Mr. KENDALL. Right, but I think that Justice Stevens in dissent 

has a very good response about why the ruling, a ruling that permits regulation of that particular attack ad does not open up the 

floodgates to regulation of every book or every film. 

Senator SESSIONS. Well, that was Mr. Stevens’ view, but five did 

not agree. 

Mr. Smith, would you comment on that? 

Mr. SMITH. If I could just address that briefly, a couple things. 

First, Solicitor General Kagan at re-argument said, as Professor 

Rosen said, she denied the desire to ban books. But she did not 

deny the authority to ban books. And she did say, ‘‘Well, we regulate pamphlets.’’ I do not know if this is a pamphlet or a book, and 

I do not know at what stage it becomes a book and at which stage 

15 

it is a pamphlet that can be prohibited. And that was the Government’s position in briefing as well. This was not—you know, Deputy Solicitor General Stewart was not speaking out of school. 

Second, it is not clear to me that it is easy to make these distinctions. Notice that none of the dissenting Justices actually was willing to concur in the judgment on any of these more narrow 

grounds. All of them said, ‘‘Yeah, they can’t do it,’’ period. And I 

think there was some realization there that such a scheme would 

be very unstable and not likely to hold up. 

But at a minimum, what you have is overkill. Statutes provide 

overkill responses. So when you have statutes attempting to totally 

ban this type of corporate speech, you may get a Supreme Court 

ruling that says, no, you cannot do that. 

Congress might be able to come back in and say—you know, the 

early laws, we have talked about some. Elihu Root talked about 

corporate contributions, big corporations, as Professor Rosen notes, 

contributing amounts that in today’s dollars would be well in excess of $1 million. But I suppose if Congress did some serious finding to show a measure of corruption and had a limit on corporate 

expenditures up in the realm of $2 million supported by this type 

of fact finding about the corruption there, and a narrowly tailored 

response, in other words, that it could hold up. But you cannot just 

go and say every nonprofit corporation, every nickel-and-dime 

small business in the country is absolutely prohibited. That is not 

a narrowly tailored solution that is satisfactory to abridge First 

Amendment rights. 

Senator SESSIONS. My understanding is that Solicitor General 

Kagan said with regard to that issue, ‘‘We haven’t done that yet.’’ 

And she said, ‘‘The author would have a good claim if he wanted 

to sue.’’ In other words, she thought that if an author was stopped 

from publishing their book or so forth, that they would have to sue 

to defend their rights, at least. Thank you for the good panel we 

have. 

Senator HATCH. Mr. Chairman, I have to be necessarily absent, 

so I would like to submit my questions in writing to all three, if 

I can. 

Chairman LEAHY. Of course, and we will keep the record open 

for the rest of the day for any further questions and also any statements anybody wishes to make on both sides. 

[The questions of Senator Hatch follow:] 

Chairman LEAHY. Senator Feingold. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Mr. Chairman, I, of course, particularly 

thank you for holding this hearing. The Citizens United decision 

was a tragic mistake. A mistake because the Court reached out to 

decide constitutional questions that were not necessary to decide 

the case and not raised or addressed by the courts below. Tragic 

because the Court damaged its own reputation and integrity by reversing precedents unnecessarily and, most important, because it 

opened the door to a political system that, more than ever, can and 

likely will be dominated and distorted by corporate wealth. 

16 

The Court showed a remarkable ignorance of how campaign 

money can affect legislative decisions. Just last term the Court 

held in the Caperton case that a State judge should have recused 

himself because one party to a case had made large independent 

expenditures to elect him. Yet somehow the Court concluded in 

Citizens United, ‘‘[I]ndependent expenditures, including those made 

by corporations, do not give rise to corruption or the appearance of 

corruption.’’ And, incredibly, the Court even cast doubt on one of 

the central holdings in Buckley v. Valeo—that Congress can enact 

campaign finance laws not only to prevent actual corruption but 

also to prevent the appearance of corruption. The Court said in 

Citizens United, ‘‘That speakers may have influence over or access 

to elected officials does not mean that those officials are corrupt. 

And the appearance of influence or access will not cause the electorate to lose faith in this democracy.’’ 

No matter what their political persuasion, all Members of Congress strive all the time to show their constituents that no one has 

influence over them and that no group has special access. The idea 

that these appearances have no effect on the confidence that the 

electorate has in us and in our democracy is naive, to put it mildly. 

What is perhaps most disturbing is that the Court made these 

pronouncements without allowing any opportunity at all for a factual record to be developed. When it considered a facial constitutional challenge to the McCain-Feingold bill, the Court had before 

it an enormous legislative record developed over many years on the 

corrupting influence of soft money, along with a huge amount of 

discovery taken in the case itself. The Citizens United Court overturned a century of Federal and State law without considering such 

a record. The participation of the over 20 States whose laws were 

essentially thrown out in this case was limited to a single amicus 

brief. I simply do not understand why the majority felt that it was 

justified in taking this tremendous shortcut. 

Now, we are in a period of great political turmoil, and the American people are expressing their opinions forcefully. They are rightfully demanding that their elected representatives listen to them 

and respond to their views and their needs. I think it is for that 

reason that so many people are baffled and angered by the Court’s 

decision. The people I talk to in Wisconsin do not want elected officials to be more responsive to corporations. They do not think that 

corporations have too little power in our legislative process or that 

they need to be able to spend freely to elect a legislature that will 

do their bidding. They want a Government ‘‘of the people, by the 

people and for the people,’’ as Abraham Lincoln famously put it in 

the Gettysburg Address. In its haste to impose its own skewed vision of the First Amendment, where a corporation has the same 

rights of political expression as a person, the Supreme Court seems 

to have forgotten that bedrock principle. 

Mr. Kendall and Professor Rosen, Professor Smith says in his 

testimony, ‘‘While corporations do not have the ability to exercise, 

as corporations, all constitutional rights, they have long been recognized as able to assert constitutional rights where doing so is necessary to preserve the rights of the corporate members or shareholders. Thus, when a corporation asserts a right to speak, it is 

17 

really the members of the corporation asserting a right to associate 

and to speak as a group.’’ 

What do you think of that statement? And then I will let Professor Smith have a chance to respond. Professor Rosen. 

Mr. ROSEN. Thank you, Senator, for that eloquent statement. 

I do not mean to plug Justice Brandeis too much today, but he 

was our greatest theorist both of free speech and of the dangers of 

corporate power in American life, and he would have strenuously 

resisted Mr. Smith’s statement. In ‘‘The Curse of Bigness,’’ he talks 

about how huge corporations—investment banks, mostly -cannot 

possibly be an amalgam of the expressive interests of their members because they are so complicated that the people in charge do 

not even understand the risks that they are taking. They take 

these huge risks with other people’s money. They end up not serving the public interest but their own interests. And that is why 

Brandies wanted taxation to break up these huge corporations, and 

his entire vision of free speech emphasized the idea that individuals have a duty to develop their faculties. Participation is a public 

duty. So his vision of the First Amendment, unlike the one Senator 

Sessions embraced, was that laws that promote public deliberation, 

far from threatening the First Amendment, actually serve it. 

And then, finally, he was very keen on disclosure. Sunlight is the 

best disinfectant, electric light the best policeman. 

So for all these reasons, he would have completely resisted and 

rejected the idea that a corporation actually meaningfully expresses the political views of its individual members. He wanted to 

protect small businesses and minority shareholders, and it is his 

vision, far more than that of Mr. Smith, that really represents the 

great American free speech tradition. 

Senator FEINGOLD. Thank you so much. 

Mr. Kendall. 

Mr. KENDALL. Well, I think, Senator Feingold, you know better 

than anyone in the world that the campaign finance system in this 

country is actually not blunderbuss like Mr. Smith describes it, but 

actually quite nuanced and so it allows the speech of individuals 

that are parts of corporations, it allows corporations to form PACs 

and have voluntary donations to the PACs, which allows the corporation itself to speak to a degree. And the idea that corporations, 

these large corporations, are simply associations of citizens gathering around to express political expression just belies their very 

nature. We create corporations as an engine of economic growth. 

We give them a fiduciary duty to advance the profits of the corporations. Most people invest simply to make money—and to describe that as this core political association I think is just to belie 

the nature of corporations and the history of our treatment of 

them. 

Senator FEINGOLD. Thank you. 

Professor Smith. 

Mr. SMITH. Thank you, Senator. I appreciate your giving me an 

opportunity to comment on this as well. 

One of the focuses, of course, here today that we keep hearing 

is large corporations, large corporations, large corporations. And as 

I just indicated, one of the problems with having sort of a blunderbuss statute that prohibits all corporations from doing any politVerDate Nov 24 2008 12:05 Oct 13, 2010 Jkt 058420 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58420.TXT SJUD1 PsN: CMORC
18 

ical spending from dollar one is that you get a response that also 

goes to the opposite sort of extreme. 

Most corporations in America, of course, are small corporations, 

and many, many, many of them, like Citizens United, are nonprofit 

corporations that are specifically organized truly for speech. And 

most corporations are too small to support a PAC and pay the administrative costs of a PAC, and they do not have enough people 

to solicit to even have money in the PAC to speak. But they have 

interest. 

For example, in the recent Senate race in Massachusetts, there 

was a little wine distributors that distributes wine through the 

mail that sent a notice out to people saying, ‘‘We think you should 

vote against one of the candidates in that election because that 

candidates wants to tax wine shipments through the mail.’’ This is 

a classic case where it is of interest to the consumers of that company, it is of interest to the shareholders and the owners of that 

company, and it is in their interest to speak not as individuals but 

as a corporation to something that directly threatens the economic 

purposes for which they have joined together. And we allow corporations to do that kind of speech all the time under the business 

judgment rule. 

And it goes beyond just pure political speech. It includes, for example, charitable giving to controversial groups like Planned Parenthood, or even the Boys Scouts now are often controversial. It allows clearly commercial ads. Some of you may have seen the Audi 

Green Police ad during the Super Bowl, and if you did not, go to 

YouTube and watch it. It basically portrays environmentalists as 

being sort of a bunch of petty little neo-Nazi sorts. And I am not 

sure that a lot of shareholders of Audi really were pleased with 

that perhaps if they were also members of environmental groups. 

But that is what the business judgment has historically allowed. 

So, again, the problem is this sort of blunderbuss statute rather 

than anything that is narrowly tailored to address First Amendment concerns based on clear findings of a problem with independent expenditures of that type, and that might change the analysis here. 

Chairman LEAHY. Senator Cornyn. 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. 

Mr. Chairman, I think that both sides of this debate have good 

intentions, and I wish there was a way we could limit the impact 

of unlimited money affecting elections. But, frankly, I think what 

started from good intentions in 2002 to try to limit the impact of 

money in politics has been an abysmal failure. 

I would just cite the point that in 2008 President Obama raised 

$740 million, a new record, which was twice as much money as was 

raised by Senator Kerry and President Bush in 2004. In the two 

Presidential elections since the campaign finance reform legislation 

passed, the candidates have raised more and spent more than the 

candidates in the seven previous Presidential elections combined. 

And I remember what happened, for example, in the most recent 

special election in Massachusetts. There were 13 different organiVerDate Nov 24 2008 12:05 Oct 13, 2010 Jkt 058420 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58420.TXT SJUD1 PsN: CMORC
19 

zations and entities spending money for and against the candidates 

in that campaign toward the end. Thirteen. So to Mr. Kendall’s 

point that there are PACs, there are 527s, there are 501(c)(4), there 

are legal entities through which individuals and corporations and 

other concerned citizens can contribute money to engage in the political process, I think we have seen an unprecedented amount of 

money go into political campaigns. 

My own view has evolved over time because I think now what 

we need more than anything else is greater transparency and accountability, because I am not convinced that we can stick our finger back in the dike. I think the dike is not only leaking, but it 

has exploded. And as we have seen in other areas of free speech, 

the solution for this is not less speech but, I think, more speech to 

get everyone’s voices and views out into the public square and to 

allow the voters to do the best they can to try to understand the 

issues, the qualifications of candidates, and then make a choice informed by whatever actor, whatever speaker that they choose or 

that they find more persuasive. 

I really think the carve-out that was created in the McCain-Feingold legislation in 2002 demonstrates the weakness of the argument that corporations somehow do not have free speech of First 

Amendment rights. Indeed, the New York Times corporation and 

the Washington Post corporation appropriately have all the free 

speech rights that are conferred by the Constitution of the United 

States, the First Amendment. We would not have it any other way. 

But why would Congress have the authority to suppress the free 

speech rights of one corporation when another corporation has a 

complete right to express their views to advocate for and against 

a candidate in an election? 

Indeed, I think I find myself aligned with some of Mr. Smith’s 

arguments with regard to the hysteria with which this decision has 

been greeted. I do not think there is going to be any Fortune 500 

corporations that are going to spend money advocating for or 

against candidates in elections because they have to be worried 

about their shareholders; and if they are wasting corporate money, 

they may subject themselves to a breach-of-fiduciary duty lawsuit. 

I think they are going to be entirely circumspect about that sort 

of activity. 

On the other hand, I do think that there are organizations like 

the NRA, the NAACP, the Sierra Club—let us say, for example, a 

nonprofit corporation was concerned about the tragedy of homelessness in America. Why in the world couldn’t they—if they adopted 

the corporate model of doing business, why couldn’t they advocate 

for or against candidates who supported or failed to support their 

agenda of dealing with the tragedy of homelessness? If there are 

organizations of people who want to band together in a nonprofit 

corporation to speak out against reckless spending in Washington 

and the accumulation of huge deficits and the failure to meet our 

unfunded Federal liabilities, why shouldn’t they be able to band together as a corporation, as a sole proprietorship, as a partnership, 

any other format to do that? 

So I think, Mr. Smith, if I could just ask you, what is the answer 

in terms of the huge volumes of money being spent largely in a 

non-transparent and opaque way by people who have enough reVerDate Nov 24 2008 12:05 Oct 13, 2010 Jkt 058420 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58420.TXT SJUD1 PsN: CMORC
20 

sources to hire lawyers to create 527s, PACs, 501(c)(4)s, where 

should we draw that line? 

Chairman LEAHY. And, Mr. Smith, I try to extend as much help 

and courtesy to members here. Even though Senator Cornyn’s time 

has expired, please go ahead. 

Mr. SMITH. I will try to be very brief. Obviously, it is a very complex question. My own view, which is expressed in numerous 

writings is that the complexity of the law makes it harder and 

harder for average citizens to participate. You know, the joke is if 

you want to run for Congress, but even if you want to try to influence your Congressman and organize a group, you have to immediately hire a lawyer. 

The really big corporations can get around it because they can 

hire the consultants and the lobbyists and the lawyers who know 

how to work the system, the accountants and so on. And we also 

need to bear in mind that large corporations, of course, spend far 

more money lobbying than they spend on campaign contributions. 

And so one of the odd effects of allowing corporations to directly 

make campaign expenditures is that it would actually be a little bit 

equalizing; that is, a car dealer may not be able to afford a lobbyist 

in Washington, but he can put $25,000 in expenditures out in a 

race. 

So regulation here, as it often does, tends to harm the small 

players, whereas the big actors can cope with it. 

Chairman LEAHY. Thank you very much. 

If Senator Whitehouse does not mind, I am going to put into a 

record an op-ed piece that he wrote for Politico on this issue. And 

hearing no objection—— 

[Laughter.] 

Chairman LEAHY. It will be made part of the record. 

[The op-ed appears as a submission for the record.] 

Chairman LEAHY. Senator Whitehouse, please go ahead, sir. 

Senator WHITEHOUSE. Thank you very much, Chairman. 

We have been discussing this decision as an ideological exercise, 

but, Professor Rosen, in your testimony, you also point out that 

there is a pattern that has developed over at the Supreme Court, 

and I happen to agree with you. The pattern, I think, is beyond distinct. It is now unmistakable. And it is that where corporate interests are involved, the corporation is highly likely to win. And where 

issues that are part of the core Republican ideology are involved, 

the Court becomes unhesitant about taking its 5–4 majority to take 

broad leaps—brand-new constitutional rights to own guns, brandnew constitutional rights of corporations to spend unlimitedly— 

that had never been noticed before and indeed often had overruled 

substantial settled precedent. 

My question is: At what point should the Court lose the benefit 

of the doubt that these are each independent on the merits decisions as the evidence piles up and piles up and piles up that when 

the outcome actually comes down, it is the Republican ideology and 

the corporate benefit that appear almost now reflexively to be the 

winners? 

Mr. ROSEN. Senator, the question of when should the Court lose 

the benefit of the doubt is one that I have struggled with personally. I had this interview with Chief Justice Roberts where he laid 

21 

out this very appealing bipartisan vision, and I was very galvanized by it. I wanted to give him the benefit of the doubt. Some 

people thought I was too charmed by him. I came home from the 

interview, and my wife decided I developed a ‘‘man crush’’ on Chief 

Justice Roberts. 

[Laughter.] 

Mr. ROSEN. Which is just false. I just deny that. It did not happen at all. 

But, nevertheless, you know, I spent 3 years, benefit of the 

doubt—— 

Chairman LEAHY. I would note in my years on this Committee, 

that is the first time that expression has been used here. Please 

go ahead. 

[Laughter.] 

Mr. ROSEN. Thank you. I try to do my best. Precedents are sometimes important to overturn. 

So, you know, I have been giving him the benefit of the doubt 

for 3 years. But when this decision was so easy to avoid and could 

have been decided on narrower grounds, it is hard to continue that 

benefit of the doubt. 

Now, one thing I want to say, these pro-business decisions are 

not—there is nothing corrupt about them. And, remember, they are 

joined by Democratic as well as Republican Justices. They are 7– 

2 or unanimous. 

Senator WHITEHOUSE. In some cases. 

Mr. ROSEN. In some cases. 

Senator WHITEHOUSE. In some cases it is the 5–4 bare majority 

working its will. 

Mr. ROSEN. That is true, too. 

I think you would have to say there are very few economic populists on this Court, and these Justices share a suspicion of regulation by litigation. But in the end, as you say, if the pattern just 

continues, it is the 13th chime of the clock, at some point you are 

going to have to say regardless of what is in their mind—and no 

doubt they are deciding things in good faith to the best of their 

ability—you would have to say the pattern is so unmistakable that 

Congress has a right to object. 

Senator WHITEHOUSE. And with respect to the pattern, one of the 

things that most concerned me about the Citizens United decision 

was not actually in the decision itself but in Justice Roberts’ opinion, in which he said—and I will be asking this to you, Mr. Smith. 

He said that stare decisis effect is diminished ‘‘when the precedent’s validity is so hotly contested that it cannot reliably function 

as a basis for decision in future cases . . . ’’ And he went on to say 

that ‘‘the simple fact that one of our decisions remains controversial does undermine the precedent’s ability to contribute to the stable and orderly development of the law.’’ 

I read that as the Chief Justice putting the rest of the Court on 

notice that a persistent attack on existing precedent by his 5–4 majority should as a matter of law be allowed to undermine settled 

precedent by virtue of the hot contest that they maintain against 

settled precedent. 

Is it your view that precedent, once settled, is indeed settled? Or 

would you accept the notion that an activist group of a Court by 

22 

consistently attacking precedent have a legitimate means of undermining it for future cases rather than accepting it as the law of the 

land? 

Mr. SMITH. Thank you, Senator. You know, I cannot speak for 

Justice Roberts, but I think, you know, my understanding or my 

sense would be that his point is that where a case has never been 

broadly settled or broadly, that is to say, agreed on by the Court— 

it has always been viewed as a close call—that precedent simply 

has less force. So Austin was a close decision itself. I believe it was 

6–3 at the time. Austin itself seemed to undercut, to work against 

prior precedents. Austin really is out of step with most of the 

Court’s campaign finance jurisprudence. And even academics in the 

field who have long thought Austin is correct have recognized that 

its reasoning is really out of step with Buckley and Bellotti and 

other cases. And the same is true for McConnell, which was 5–4. 

So I presume his argument is that simply unlike a case like, say, 

Miranda where it really does become fixed over time and Justices 

constantly reaffirm it, some things are up in the air. I do not know. 

I will say this: On the area of campaign finance, ultimately what 

you have here are two very conflicting visions, and I do not mean 

to say that—I mean, it obviously is clear which side I come down 

on. I do not mean to say that they are illegitimate considerations, 

but you have one group of Justices who essentially see that one of 

the problems in American democracy right now is too much speech 

by particular types of actors, that they have too much influence 

and that this influence is corrupting and that it clogs up the process and it gives special interests too much power. And you have got 

another group who believe that the problem is too little speech, 

that regulations of speech clog up the process and give special interest too much power. And they cannot both be correct, and they 

are going to be at odds, and we are going to have, I think, a lot 

of continuing 5–4 decisions in this area. 

Senator WHITEHOUSE. Well, my time has expired so I should end 

this. 

Mr. SMITH. Thank you. 

Senator WHITEHOUSE. But I do think it is regrettable that the 

five-member majority of the Supreme Court found as a fact on that 

question, because I do not think it is appropriate for Supreme 

Courts to be finding things as a fact, particularly without a record, 

and indeed particularly with a record as to the contrary. 

Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much. 

I am just trying to bring this down a little to where my constituents are, who I will say, Mr. Smith, are ‘‘freaking out’’—we have 

gotten hundreds of letters about this—and I think for good reason. 

We have just endured in this country and are only beginning to 

recover from a financial crisis that occurred, I think in part, because certain interests for many years were allowed to trump the 

interests—it is Wall Street trumping Main Street in this country. 

Loopholes were left open. People were put in place that did not 

make the kind of decisions they were supposed to make. And, understandably, regular citizens are wondering if their voices have 

23 

just been completely squelched, if some interests in this country 

have a megaphone and they can do nothing except write a letter 

to their representative in Washington. And it is a major problem. 

I also want to inject some reality of what it is really like when 

you raise money. When I started out, I did not know anyone in 

Washington to raise money. I went in a little room for hours a day 

and called and tried to get $500, $1,000. I did in this process set 

an all-time Senate record of raising $17,000 from ex-boyfriends. No 

one has met that yet. 

[Laughter.] 

Senator KLOBUCHAR. But I called everyone I knew, and that is 

how I started, and I think that is what people want from their 

elected officials. And it is far from, as Senator Cornyn pointed out, 

a perfect system. But the last thing I want to do is to make it 

worse. 

And when I hear these numbers—I think this was in your testimony, your written testimony, Mr. Kendall. You said that in 2008 

ExxonMobil generated profits of $45 billion, and with a diversion 

of even 2 percent of these profits to the political process, this one 

company could have outspent both Presidential candidates and fundamentally changed the dynamics of the 2008 election. Goldman Sachs just this year gave $16.2 billion—this is this 

year—in bonuses, and Senator Cornyn noted that Barack Obama 

raised $740 million. Well, one company’s bonuses alone is twice 

that amount. I mean, this is what—more than twice that amount, 

$740 million. Is that what it is? I mean, it is an infinitesimal 

amount compared to one company’s bonuses that is going out there. 

So that is what I am worried about. 

We can talk all we want about what the Court has done here and 

the process of the Court, but I am more interested in fixing this. 

And I guess my first question—Senator Schumer is working on a 

bill—is just how we fix this. And one of the ideas here is to have 

more transparency, to require shareholders to vote before a corporation spends any money in favor of a candidate, require significant additional paper trails to ensure that shareholders can trace 

how corporate dollars are being spent on elections. I guess I would 

ask you first, Mr. Rosen: Would this work? Also, what do you think 

about this idea of opening—does this decision potentially open the 

door to allow foreign corporations that have American subsidiaries 

to have an outsize influence over American elections? Or are there 

some things we can do to fix that? 

Mr. ROSEN. Thanks very much, Senator. The question of disclosure is going to be hotly contested, and if you pass Senator Schumer’s bill, that will be challenged in the Court as another violation 

of the First Amendment. And in the Citizens United case, Justice 

Thomas has a dissent where he says that he thinks that disclosure 

violates the rights of anonymous speech. He was alone in that regard, but there is a serious question, as you will see from Mr. 

Smith’s testimony, about whether the same five-member majority 

would have some question about disclosure requirements. 

I want to cite Justice Brandeis again because he is the greatest 

free speech thinker, and he was often in favor of disclosure. During 

the time that he wrote ‘‘Other People’s Money,’’ the same concerns 

about huge bonuses, underwriting commissions, and unfair treatVerDate Nov 24 2008 12:05 Oct 13, 2010 Jkt 058420 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58420.TXT SJUD1 PsN: CMORC
24 

ment of investment bankers existed as exist now, and Brandies 

thought that disclosure, sunlight, forcing people to disclose their 

bonuses and the underwriting Commissions, would lead to reaction 

and accountability and basically disclosure is the way to go. 

Senator KLOBUCHAR. OK. So you think there might be trouble 

with transparency. This idea with the foreign corporations, is there 

something we can do with that? 

Mr. ROSEN. You know, this is a technical question which I could 

give a shot to, but I think I am not going to free-lance on it. 

Senator KLOBUCHAR. OK. Mr. Smith, you talked about your poll. 

Did you ever ask in your poll if the American people think a corporation should be a person for purposes of the First Amendment? 

Mr. SMITH. No. 

Senator KLOBUCHAR. Thank you. 

Mr. Kendall, any ideas for how we can fix this decision? 

Mr. KENDALL. Well, I think the rest of my testimony and my concerns that the Court’s sweeping ruling in this case is not easy to 

fix, and that there are implications beyond what the Court holds 

in this case. If you look at the dissenting opinions by Justices Kennedy, Scalia, and Thomas in prior cases, they suggest that contributions directly to candidates would be unconstitutional. So we 

do not know if that has five votes on the Court right now, but it 

is certainly in play. And I think while the Court says, ‘‘Oh, we are 

not talking about foreign companies here,’’ the thrust of the ruling, 

which is that you cannot distinguish between corporations and individuals, would arguably, you know, put those restrictions in jeopardy. 

Senator KLOBUCHAR. The restrictions on individual contributions? 

Mr. KENDALL. The Court says there is no distinction between the 

speaker, and that is a sweeping holding, which, as Justice Stevens 

said, if taken seriously, would mean Tokyo Rose gets the same protection as General MacArthur, which is absurd. 

Senator KLOBUCHAR. There is a lot of emphasis on the testimony 

about how 28 States already allow corporate contributions in their 

State elections. Our State does not, and I think it has been a blessing. We have also some good matching fund laws that allows for 

people to not have to raise as much money for State legislative 

races. So will this decision potentially also intercede in those State 

races as well, the ability of States to ban corporate money? 

Mr. KENDALL. I think it will, and I think the problem and the 

thing we do not know is exactly how corporations are going to respond to the idea now that they have First Amendment rights to 

spend unlimited amounts to influence candidate elections, which is 

something we have never had in this country. And I think the idea 

that Exxon has not spent billions of dollars so far, while it may be 

true—— 

Senator KLOBUCHAR. They have not had that opportunity. 

Mr. KENDALL.—they have not had the opportunity. And we do 

not know how corporations are going to respond to this, but the 

idea that they are equal to individuals in terms of First Amendment rights and have exactly the same protection is one that could 

have broad ramifications in our campaigns. 

25 

Senator KLOBUCHAR. Thank you very much. I have gone over my 

time. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman, for calling this 

critical hearing. 

My office has received 220 letters just on the Citizens United decision, and it might surprise Mr. Smith that by last night’s count, 

204 of those 220 Minnesotans were opposed to the decision. So this 

is something my constituents are really worried about. And when 

you said that you had done a poll—you have heard of Freud, 

haven’t you? I really find the results very unpersuasive considering 

the questions that you asked. 

Now, Mr. Smith, after the Citizens United decision, responding 

to those concerned Americans and Minnesotans, I introduced a bill 

called the American Elections Act. It said that if a foreign national 

has a controlling share of a company, that company should not be 

spending unlimited amounts in America. And it looks like Senator 

Schumer may include this provision in his own Citizens United bill. 

Now, you criticized this in your written testimony. You said, and 

I quote, ‘‘A provision to ban companies with more than 20 percent 

‘foreign’ ownership would only restrict the rights of U.S. nationals 

to associate for political involvement because of a non-controlling 

foreign shareholder.’’ 

Now, let me underscore that you are saying that 20-percent ownership does not constitute control. Is that right? 

Mr. SMITH. Yes. 

Senator FRANKEN. Yes. So let us look at how the law actually defines a controlling share, because you said rather confidently to the 

Chairman that you are here to share your expertise. So let us look 

at how States define a controlling shareholder. 

Yes or no, please. Do you know how Delaware, the leading State 

for corporate law, defines a controlling shareholder? 

Mr. SMITH. No, I do not, nor do I think it is relevant to the question of whether control—— 

Senator FRANKEN. I asked you to respond yes—— 

Mr. SMITH. Well, the question is—— 

Senator FRANKEN.—or no, sir, and you said no, you do not—— 

Mr. SMITH. Then the question is whether you actually want serious answers or whether you are engaged in a little showmanship. 

If it is the latter, I will accept that. 

Chairman LEAHY. All right. Mr. Smith—— 

Senator FRANKEN. Sir—— 

Chairman LEAHY.—that ranks with your putdown of the 

Vermont Legislature. Please, Senator Franken, go ahead. 

Senator FRANKEN. Sir, you answer me yes or no that 20-percent 

ownership does not constitute control. I think it is important that 

the State of Delaware says it is. 

Now, do you know, for example, what the State I represent, the 

State of Minnesota, what we define as a controlling shareholder? 

Mr. SMITH. Mr. Franken, Senator Franken, laws are written for 

different purposes, and they are defined for different purposes. So 

a law that is written for one purpose is not necessarily applicable 

to another purpose, that is, the law—— 

26 

Senator FRANKEN. Well, this purpose is to decide what a controlling interest is. They have not written what a controlling interest 

is for election law because we have had 100 years of precedents 

that corporations cannot give in campaigns. 

Mr. SMITH. Then it would—— 

Senator FRANKEN. But there is a reason that there is no law for 

this. Now, I asked you to answer yes or no, but you get the picture. 

Now, the fact is that 32 States that define control with a number, 31 of them define it as 20-percent ownership or less, most of 

them less. And without objection, I would like to submit a copy of 

these States’ statutes for the record. 

Chairman LEAHY. Without objection. 

[The information appears as a submission for the record.] 

Senator FRANKEN. So while you assert that 20 percent is not control, if a foreign entity owns 20 percent of a company, 31 of 32 

States who define what control is do. And I think that is very important. 

Venezuela owns Citgo. Are we going to have Citgo putting billions of dollars into our elections? 

Mr. SMITH. The answer would be no. 

Senator FRANKEN. And why would that be, sir? 

Mr. SMITH. Do you actually want me to answer this? OK. First, 

the law prohibits foreign nationals from contributing any money or 

spending any money in any U.S. election. Under the FEC’s—— 

Senator FRANKEN. Wait. We have a statute that bans direct or 

indirect giving by foreign nationals, but this law is vague, it is out 

of date. Under Citizens United, it still allows a foreign-controlled 

subsidiary to spend unlimited amounts in our elections. 

Now, you just said the law prohibits foreign nationals from participating in giving, but it does not. 

Mr. SMITH. Now, the law allows as U.S.-incorporated and U.S.- 

headquartered company—that is, a U.S. company which is a subsidiary or which has foreign ownership—and, of course, U.S. citizens have great ownership in many foreign companies as well—to 

make—a U.S. company, in other words, can make expenditures in 

races. 

Now, nobody believes that the 2 U.S.C. 441(b) was passed in 

order to prevent foreign corporations from participating. If this is 

a particular interest of Congress, then it may be something that 

Congress can address with a narrowly tailored solution. But I 

would also note that FEC regulations, which, of course, as you 

know, have the force of law, prohibit any foreign national from 

being involved in any decision that a corporation might make. 

Senator FRANKEN. Well, if the foreign national owns 20 percent, 

they are not going to have any influence over this, that the people 

in the room making this decision are not going to know this? 

Justice Kennedy explicitly reserved judgment on whether or not 

there is a compelling interest to limit foreign individuals or associations from influencing our Nation’s political process, and you know 

that. 

Mr. SMITH. Yes, I do. 

Senator FRANKEN. In fact, Justice Kennedy assumed for the sake 

of argument that such an interest does exist—— 

Chairman LEAHY. Senator Franken. 

27 

Senator FRANKEN. My time has expired. Thank you. 

Chairman LEAHY. Senator Cardin. 

Senator CARDIN. Mr. Chairman, thank you very much. This has 

been a very interesting hearing. 

I think you all would understand that the people of Maryland, 

whenever I go around my State, they are very interested in the 

way we conduct financed campaigns. It is a subject that they have 

very strong views about. They think the campaigns are too long. 

They think they are too expensive. And they think that the way 

that we finance campaigns is corruptive to our political system. 

And I agree with the way Marylanders feel about that, and this is 

all before the Citizens United case. 

Every 2 years, we find elections becoming longer and more expensive, and more special interest dollars are finding their way 

into the system. That is, again, before the Citizens United case. 

Marylanders want fundamental change in the way that we finance campaigns in this country, and I want fundamental change. 

And I guess my concern is, Professor Rosen, when we mention 

some of the ways that perhaps we could counter the Citizens 

United, you raised concerns as to whether any of those could withstand the challenge of the make-up of this Court. 

And as I look at additional challenges that are likely, it seems 

to me that this Court is going to move us in a direction—the wrong 

direction, the opposite direction of which we need to do, and that 

is fundamental reform in the way that we conduct elections. 

It is Congress’ responsibility to set up the system for fair and 

open elections in the United States. It is not the Court’s responsibility to do that. It is clearly the Court’s responsibility to make 

sure that we are consistent with our Constitution. But it is Congress’ responsibility to develop the nuts and bolts on how we conduct elections in this country. 

And I guess my concern is—and this is a very reluctant conclusion I am coming to. It is, I guess, my conclusion that with the 

make-up of this current Court it is unlikely that we can pass the 

type of laws that can make the fundamental changes that the people of Maryland would like to see us make and that I agree with 

them that we need in order to protect the integrity of our system 

on electing our public officials. 

So I come to the conclusion that we have to seriously consider 

amending the Constitution of the United States in order to deal 

with this issue, and I would like to get the panelists’ views as to 

whether you believe—if you agree with the people of my State and 

their Senator that we need fundamental change, can we do it by 

legislation? Or will it require amending the Constitution? Professor 

Rosen, I will let you go first. 

Mr. ROSEN. Senator, you express so well the frustration that 

Congress should feel in the face of uncertainty about whether it 

can pass these reforms. And it is striking—this is why the debate 

about activism is important. Conservatives said for 40 years that 

judges should interpret the law, not make it, and should defer to 

Congress about contested constitutional questions. So the fact that 

there is uncertainty about how the Court will treat these reforms— 

and I should stress when I say this majority might not uphold 

28 

them, I am not saying that they should not uphold them. I think 

they are constitutional. But it is not a clear case. 

A constitutional amendment? Well, that is always a great thing 

to propose, and if the intensity of public opposition to this decision 

is so strong, perhaps it is not implausible that it might proceed. 

But you know better than anyone, Senator, how hard it is to pass 

an amendment even with public support. 

Senator CARDIN. Let me make it clear. I am going to work with 

my colleagues here on legislation because a constitutional amendment takes a lot of time. But I think we need to seriously consider 

whether there has been a fundamental shift in who determines 

how elections are conducted in the United States. The Congress expressed its view. The Supreme Court knocked it down. And I really 

do not understand the basis of their opinion, but I must express 

the Supreme Court is the arbiter on the Constitution. Therefore, 

there is a fundamental flaw. The only way it appears to me that 

we may be able to correct it is through a constitutional amendment. 

Mr. Smith, I welcome your thoughts on this. I think we all, all 

three of you would agree it is up to Congress to determine the fundamental structures of how elections are conducted in this country. 

Mr. SMITH. Senator, I would say that, yes, I think the kind of 

major changes that I think you are thinking about would require 

a constitutional amendment. I do think that there are some actions 

that Congress can take, that it may want to take, that it feels 

would improve the process that would be okay within Citizens 

United. I do not like to use the phrase ‘‘fix Citizens United’’ because 

I think it is fine. But if you want to use the phrase ‘‘fix Citizens 

United,’’ I think there are some things you could do. 

And I would also urge members to consider responses that—for 

example, lifting the limits on party and candidate coordinated expenditures, because right now, for example, parties which can only 

raise hard money cannot coordinate, so if a corporation spends a 

lot, it is hard for the candidate to raise money, but the party may 

be able to. 

Senator CARDIN. But that just puts more money into the pot. Believe me, there is enough money in the pot. 

Mr. Kendall, very quickly, because my time is—— 

Mr. KENDALL. Sure. I agree with everyone you said. I think that 

there are problems that Citizens United creates that Congress will 

have a very difficult time fixing. I think that the only way this gets 

truly fixed is if the Supreme Court reverses course again or if we 

pass an amendment to fix it. 

I do think that there are some things that this body is already 

considering that would help and that would probably withstand 

scrutiny. I hope that is true. 

Senator CARDIN. Thank you, Mr. Chairman. 

Senator SPECTER. [Presiding.] Thank you, Senator Cardin. 

Senator Kaufman. 

Senator KAUFMAN. Yes, I would just like to make a few comments. 

First off, I am not freaked out on this, but I am very, very concerned—I mean, I cannot think of anything that happened recently 

that has caused me more concern than this decision. And I am not 

29 

running for re-election so it is not some populist speech or anything 

else. It just in so many different ways affects me, and I think sitting here and listening this morning, it does—I teach a course at 

Duke Law School, and I taught it for 20 years in the Congress. And 

we spend time with some very smart students going through the 

election law. And I have a more and more difficult time—Senator 

Cornyn is right. It is very difficult, the system that we have now, 

and the money is growing. I do not know what I would say to them 

this year, because—and I mean this with all respect, Mr. Smith. 

This is a blunderbuss. This is taking a system that, while not—the 

only disagreement I have with Senator Cornyn is I hate to think 

what the numbers would have been in the last couple elections 

without McCain-Feingold. I mean, you look at what is going on, I 

mean, it just would have been absolutely, in my mind, you know, 

incredible. And a lot of them have been caused, frankly, by the Supreme Court rulings before this one, and it was caused by people— 

and we sit and listen to these discussions—that are really, really, 

really smart people and really, really, really know a lot about the 

law and know nothing about campaign financing and refuse to lean 

on the Congress and what the Congress thinks and what the Congress found as facts in making the decisions. 

It is sort of like advertising. Everybody thinks they are an expert 

on advertising. Everybody thinks they are an expert on campaigns. 

‘‘After all, I see the campaign ads. I know what is going on.’’ 

But when you sit with the students and you go through it, while 

this thing did generate more money, it was an incredible effort trying to deal with legitimate concerns the Supreme Court addressed 

in Buckley v. Valeo, but on about free speech, which we are all concerned about. But to take a blunderbuss and blow the whole thing 

into next year, to say that corporations now can spend from—as 

Senator Klobuchar said—I mean, Goldman Sachs has a lot of interest and expressed—and I am concerned about small business people. But small business people, by and large, they can contribute 

their own. They can get it done. This is not about small business. 

It really is not. This is about very, very, very big business because 

this is about very, very, very big money. 

So, anyway, I think this is—and I do not think there are ways 

out. I mean, Senator Cornyn said he is interested in transparency. 

I spend a lot of time on this law. I do not know how we get transparency based on Mr. Smith’s definition of what this ruling means, 

because corporations, they are very, very smart. ExxonMobil, if 

they decided to put $1 million into a campaign, $5 million, $10 million into a campaign, they are not going to do it. It is going to be 

the Committee for Clean Government that they are going to give 

to one of their subsidiaries. No one is ever going to know where the 

money comes from. You can pick up the Hill magazine or Roll Call 

or Politico, and you will see page after page after page of ads trying 

to influence the election where no one who it is that is involved. 

Now, I do not see how we can get to that based on Mr. Smith’s 

analysis of the law and sections of the ruling. That is why I am 

so concerned. 

Now, one other thing I just want to spend a minute and talk 

about is judicial activism because we hear a lot about judicial activVerDate Nov 24 2008 12:05 Oct 13, 2010 Jkt 058420 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58420.TXT SJUD1 PsN: CMORC
30 

ism, and the Ranking Member and I have had a number of discussions. 

Professor Rosen, you and Mr. Kendall both talk about Citizens 

United as an activist decision. Can you explain that in the context 

of judicial activism as we know it over the last, say, 15 years? 

Mr. ROSEN. Thanks for that question, Senator. As you know, activism is a hotly contested term. It is in the eye of the beholder. 

Everyone has his own definition. This decision is activist by any 

definition of activism, so let us take the different definitions, and 

they point in different directions. 

First, deference to text and original understanding of the Constitution. As Mr. Kendall shows, this is not deferential to the history and ignores the text’s distinction between the Press Clause 

and the Free Speech Clause. 

Second, deference to precedent. As you suggested, this is a blunderbuss to precedent. 

Third, deference to history and tradition. This uproots decades of 

tradition and legislation dating back to the progressive era. 

And then, finally, pragmatic considerations, many people think 

irrelevant. This is highly unpragmatic and refuses to defer to Congress in the face of uncertainty. 

So it is not that it is unprincipled. Again, Earl Warren could 

have written this decision. And Justice Kennedy is not a restrained 

Justice, so that is fine for him. But the other members of the conservative majority care a lot about restraint. They say they are 

minimalists. This is why it is important—Chief Justice Roberts 

said in his hearings, ‘‘I am a bottom-up rather than a top-down 

judge. I want to move incrementally.’’ The fact that he did not do 

that even though he could have is what makes this so activist and 

what makes it so troubling. 

Senator KAUFMAN. Mr. Kendall? 

Mr. KENDALL. I think Professor Rosen did a tremendous job of 

explaining my points. The one other point that I would make is 

Chief Justice Roberts goes through the factors of stare decisis, and 

one of the things he relies most heavily on is this tension between 

Bellotti and Austin, which are these two earlier rulings, and he 

completely ignores the fact that—and Justice Stevens points this 

out very skillfully in the dissent. He ignores the fact that there is 

a footnote in Bellotti that expressly leaves open the issue addressed 

by Austin. And so if you look at those two opinions, they really can 

be put together and make total sense together, and that is where 

the Court’s rulings were, and yet the Court came back in Citizens 

United and found a problem where it really did not exist, and I 

think that is one definition of activism. 

Senator KAUFMAN. I have felt for many years that judicial activism is in the eye of the beholder, that, you know, if it is going your 

way, it is not judicial activism, if it is not—I think that has kind 

of put that to rest. I think we can have judicial activism on the left 

side of the spectrum, and we can have judicial activism on the 

right side of the spectrum. 

Thank you very much, Mr. Chairman. 

Senator SPECTER. Thank you, Senator Kaufman. 

Professor Rosen, your testimony, your written testimony is very 

critical of Chief Justice Roberts. Among other things, you say it is 

31 

precisely the kind of divisive and unnecessarily sweeping decision 

that Chief Justice Roberts pledged to avoid in his confirmation 

hearings. 

When he testified on confirmation, he spoke very strongly 

against a ‘‘jolt to the legal system’’ and amplified by saying that it 

is not enough that the prior decision was wrongly decided, but you 

ought to look to other factors like settled expectations, the legitimacy of the Court, whether the precedent has been eroded by subsequent developments. And he was also very emphatic in his confirmation hearings about deference to Congressional fact finding. 

He said the reason—well, let me pause there and ask you some 

questions. 

Do you think this case was a jolt to the legal system? 

Mr. ROSEN. The Citizens United case certainly was, Senator, for 

the reasons that you and your colleagues have explained very eloquently. 

Senator SPECTER. Could you fathom more of a jolt to the legal 

system than this decision, 100 years corporations cannot engage in 

political advertising? 

Mr. ROSEN. It is very disruptive, Senator. 

Senator SPECTER. How do you square that very forceful testimony with this very sweeping overruling of 100 years of law? 

Mr. ROSEN. Senator, I have thought about that long and hard because, as I say, I do respect Chief Justice Roberts and his vision. 

There is one sentence in his concurring opinion that perhaps is the 

most revealing on this score. He says, ‘‘We cannot embrace a narrow ground of decision simply because it is narrow. It must also be 

right.’’ And that confidence that this was the right decision obviously is what motivated him to join here, and that must have been 

what was in his mind. But that vision that he alone knows what 

is right is not the vision that he embraced in his confirmation hearings. He embraced the vision of Justice Holmes who said the Constitution is made for people of fundamentally different points of 

view. 

Senator SPECTER. Professor Rosen, in light of the limited time, 

let me move to another issue. Chief Justice Roberts at his confirmation hearing said this with respect to Congressional fact finding. He said, ‘‘The reason that Congressional fact finding and determination is important in these cases is because the courts recognize that they cannot do that. Courts cannot have, as you have 

said, whatever it was, the 13 separate hearings before passing particular legislation. Courts, the Supreme Court, cannot sit and hear 

witness after witness in a particular case and develop that kind of 

a record. Courts cannot make the policy judgments about what 

type of legislation is necessary in light of the findings that are 

made. We simply do not have the institutional expertise or the resources or the authority to engage in that type of a process. So that 

is the sort of a basis for the deference to the fact finding that is 

made. It is institutional competence. The courts do not have it. 

Congress does. It is constitutional authority. It is not our job. It is 

your job. So the defense in Congressional findings is an area that 

has a solid basis.’’ 

Now, in the voting rights case, although decided on narrower 

grounds, Chief Justice Roberts was very dismissive of the vast 

32 

record that was compiled in this room on the voting rights case, 

saying, ‘‘They are too sweeping’’—’’they are sweeping far more 

broadly than they need to in addressing the intentional discrimination under the 15th Amendment.’’ 

Now, how does that statement by Chief Justice Roberts of the 

oral argument square with the vast deference he articulated for 

Congressional fact finding? 

Mr. ROSEN. Senator, I agree with you that it is troubling. The 

voting rights case was one where Chief Justice Roberts did come 

up with a narrow grounds of decision. He invented an idea that 

Congress had not anticipated and said that electoral districts could 

bail out of preclearance. But he did not have to question Congress’ 

fact finding there. Justice Souter said they should have found there 

was no standing to bring the suit. That would have been far more 

respectful of Congress, and I think you have long focused on this 

Senator. You are right to question this. 

Senator SPECTER. Professor Rosen, what is the value of confirmation hearings if you have those statements at confirmation by a 

nominee and these kinds of decisions? 

Mr. ROSEN. Senator, you are right to ask that question, and it 

was not just in his confirmation hearings that he said this. He said 

this in speeches and interviews afterwards. 

Senator SPECTER. I know I am right to ask that question. What 

I would like is an answer. 

Mr. ROSEN. Well, you will have to ask Chief Justice Roberts that, 

but I think you are right to note the tension between what he said 

in his hearings and his performance on the Court. 

Senator SPECTER. Somebody send for the Chief Justice. 

Mr. ROSEN. I am sure he will be glad to come down on a moment’s notice. 

Senator SPECTER. Well, my time is up. A second round, Senator 

Sessions. 

Senator SESSIONS. Thank you, Senator Specter. 

Chief Justice Roberts did a fabulous job when asked about stare 

decisis in his hearing, and he explained what the standards were 

classically understood to be the basis for overturning prior decisions. And I think his opinion indicates he felt it fell within that 

range, and he never said that he was going to defer to Congressional decisions on constitutional questions that violated the Constitution. And we violate it regularly around here, in my opinion, 

and I predicted this case violated the First Amendment—this legislation when it passed, and so did a lot of other people. We knew 

this was at the very edge and really thought it was over the edge 

of what the First Amendment would allow the Government to prohibit. And so I do not know. 

I do say this: that it does appear to me that the case did implicate big issues. It was hard to decide this on a strictly narrow 

basis. You could have done so perhaps, but if we were proceeding 

under matters that, fairly considered, violation the constitutional 

right of a group of people to speak out, then doesn’t the Supreme 

Court, Mr. Smith, have a right to say no, and even if Congress in 

its wisdom thought it was legitimate in doing so? 

Mr. SMITH. Well, again, I think when precedent should be overturned is a complex question, but what I would say about this case 

33 

is, for example, suppose the Court had said that while the statute 

did not really intend to cover video on demand transmissions, first, 

that would have done some abuse to the statute because the statutory language pretty clearly does cover it. But they could have argued that in some way. 

The next question would have been, the next case would have 

come up, which is, OK, can you ban a book, can you ban a pamphlet or whatever have you. If you ban a book in the next one and 

the Court said, no, you cannot ban a book, they would have gone 

to a pamphlet. 

Similarly, you know, if you look at the various other grounds 

that have been offered, like, well, what if—Citizens United in a 

nonprofit. Well, what about the fact that they accepted contributions from for-profit companies? And then people would say, ‘‘Well, 

if it was a de minimis amount.’’ And the next case would be, ‘‘Well, 

what is a de minimis amount?’’ 

In other words, I think what the Court recognized in this case 

and I think one reason none of the dissenters would actually concur in the judgment on any of these grounds is because doing so 

would not have led to a stable system. It just would have put off 

a series of complex questions, and it would have further rewarded, 

again, the lawyers, the consultants, the lobbyists who know how to 

game the system and know exactly what you can do and what you 

cannot. So I think that a sweeping decision—— 

Senator SESSIONS. Well, along that line, I believe the Chief Justice—someone noted that none of the dissenters proposed a narrow 

ground. They took a constitutional view of it, apparently, and so we 

had, didn’t we, Mr. Rosen, a constitutional difference of opinion? 

Mr. ROSEN. Justice Stevens addresses that in his dissent, Senator, and he says it is common for lawyers to argue in the alternative. It is possible if the Chief Justice had actually in good faith 

embraced this narrower ground, the dissenters might have changed 

their mind, just as they did in the voting rights case where they 

embraced a reading of the statute that they might not have chosen 

as a primary matter, but were willing to take as a compromise. 

Senator SESSIONS. It is possible, but it is also possible that he 

had two different views of what the Constitution says, it seemed 

to me. And I think it is a big issue, and sometimes you just have 

to decide those questions. 

I do think that the—— 

Mr. KENDALL. Senator, if I may? 

Senator SESSIONS. Yes. 

Mr. KENDALL. I think the best way to describe what this case 

was about was the way Citizens United initially litigated it. They 

did not challenge the 1947 statute. They put the challenge to Austin as a total afterthought in their briefs. It was only when the 

Court came back and said, no, let us brief specifically whether Austin should be overturned that Mr. Olson focused on that question. 

So you are saying it raised big questions, but it raised big questions only because the Court changed the question on the litigants. 

And I think the—— 

Senator SESSIONS. But Citizens United had an interest in winning the case, and they did raise the other issues, but really the 

case took on a different dimension when the Solicitor General made 

34 

arguments that indicated that she believed books published before 

an election could be banned, that the U.S. Congress has the power 

to ban the publishing of books. And this is a big deal. It implicates 

the First Amendment, and it would be the first time in the history 

of the Republic, would you not agree, that the courts or the Congress had ever banned the publishing of a book? 

Mr. KENDALL. Again, I do not think that was Solicitor General 

Kagan’s position. It was Malcolm Stewart who initially argued it, 

and I do not know how that changes—I mean, again, the narrow 

question of whether the specific 90-minute attack ad was within 

the campaign finance is a fairly narrow question that was litigated 

on that ground. The questions that the Justices asked the SG’s office and the implications that it got into, it is really about the way 

the case is handled by the Court, not about what the question presented by Citizens United and fairly within the briefing of the initial case—— 

Senator SESSIONS. Well, she said in her argument, later I guess, 

‘‘We haven’t done that yet,’’ but indicated that there might be a 

possibility it could be done and that an author would—they could 

always fight it in court. 

Mr. KENDALL. I think what she was saying is that we haven’t 

done it and we won’t do it, and if there was—if we did it, it could 

be challenged. 

Senator SESSIONS. I thank you. It is a great discussion, an important issue, and all of you have made good points. And I would say, 

Mr. Smith, Senator Leahy is going to defend his Vermont Legislature. 

[Laughter.] 

Senator SESSIONS. As he did ably. 

Mr. Chairman, good to be with you. 

Senator SPECTER. Thank you, Senator Sessions. 

Senator Kaufman. 

Senator KAUFMAN. Yes. The Ranking Member is quite eloquent 

in these, but I think with all due respect, even superficial knowledge would see that this was not going to be decided on—when he 

got to the point in the oral argument, this was not going to be a 

case decided on narrow arguments. So I think it is reasonable to 

believe that the minority knew what was coming and acted accordingly. That is just—everybody has got a right to their opinion, but 

that is kind of my opinion. 

Senator SESSIONS. Well, no, I think that is why they asked for 

new argument, and they made it publicly clear and allowed the debate to go forward on a larger basis. Rightly or wrongly, that is 

what they did. 

Senator KAUFMAN. I would not want to miss this opportunity to 

follow up on both Senator Whitehouse and separate comment by 

Senator Klobuchar. One was Senator Whitehouse talking about the 

pro-business bent of the Court. 

Sitting here listening, you would say, well, they overturned this 

one case, and it was a 100-year precedent, and, wow, you know, 

they have been doing this kind of on a regular basis, haven’t they, 

in the business area? And the one that comes in common that Senator Whitehouse has, they all seem to benefit business. So, ProVerDate Nov 24 2008 12:05 Oct 13, 2010 Jkt 058420 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58420.TXT SJUD1 PsN: CMORC
35 

fessor Rosen, Mr. Kendall, could you kind of talk about the business activism part of this case? 

Mr. ROSEN. The statistics in recent years are really striking. 

When you look at the 46 business cases before the Roberts Court 

in which the Chamber of Commerce participated, the majority of 

them go the Chamber’s way in areas ranging from punitive damages, preemption, False Claims Act, securities, and antitrust cases. 

If you want some more stats, they are striking. The Court accepts less than 2 percent of the petitions it receives every year. The 

Chamber of Commerce’s petitions were granted at the rate of 26 

percent, and with a success rate for those of 75 percent. So the 

claim that this is a pro-business Court is increasingly hard to dispute. 

Senator KAUFMAN. A pro-business activist Court. 

Mr. ROSEN. A pro-business activist—— 

Senator KAUFMAN. In terms of Leegin, where they overturned 96 

years of antitrust law, Exxon, so there is a constant theme that 

goes through. It is not just this case where they overturned 100 

years of precedent. 

Mr. ROSEN. That is right, Senator. 

Senator KAUFMAN. Mr. Kendall? Mr. Smith? 

Mr. KENDALL. I think your concern is entirely valid. I think it 

traces from a 40-year effort by the Chamber to take advantage of 

what Justice Powell said was an opportunity for corporations in the 

Court. If you look at some of the recent cases that the Chamber 

and corporations have funded a tremendous amount of research on, 

things like attacking jury verdicts—there are few things that 

mattered more to James Madison than the jury trial, civil and 

criminal jury trials, and yet corporations have aggressively taken 

on the idea that there should be a trial for anything and tried to 

advance the idea that everything should be handled by arbitrators 

that typically they hire. 

And so it has really been an assault on one of the most essential 

values of our Framers and the Constitution itself, and that has had 

tremendous success. They have won just about every case expanding this Federal Arbitration Act from something that was intended 

to be a fairly narrow statute into something that throws just about 

every business case out of the Federal courts entirely. 

Senator KAUFMAN. Let me ask another question, and that is, you 

know, I think most of us think that based on the recent financial 

meltdown, the incredible pain it has caused to so many people, I 

think there is total agreement on that. I think most people think 

that part of that was caused by, as Alan Greenspan said, a selfregulation that did not work, that he was dismayed about, and that 

a major part of it was dismembering of the rule of laws and regulations we put in place, laws we put in place after 1929, from GlassSteagall to setting up the SEC to the uptick rule to all the things 

that we put in place in a period of just slowly but surely under 

both administrations dismembering this. And I think most people 

think that we have to go back to have more regulation—not overregulation but more regulation. 

Looking at the Supreme Court, what are the prospects that 

someone that is going to sit here and have to try to deal with this 

36 

and write laws that whatever we do in the regulatory area could 

be overturned by this Court? 

Mr. ROSEN. Senator, this is a very serious question, obviously. 

The Troubled Asset Relief Program has already been challenged by 

libertarian organizations, and that will work its way up to the Supreme Court, and other of the regulations that you mentioned will 

be challenged as well. 

Will this Court give a full-scale assault against these regulations 

in the way that the pre-New Deal Court did? Predictions are not 

worth much. I would doubt that they would go that far, largely because of the most conservatives on the Roberts Court, you could 

call them pro-business rather than libertarian conservatives. Only 

Justice Thomas might really believe that the post-New Deal regulatory state is unconstitutional. 

But that does not mean that they could not strike down a whole 

lot of stuff and do a lot of damage. Later this term, they are going 

to decide whether the Public Company Accounting Board to create—— 

Senator KAUFMAN. Right. 

Mr. ROSEN. You know, whether that is unconstitutional. Lots of 

people think—the betting is that that might well fall. 

One of the striking lessons of history is it only takes a couple of 

really activist decisions to tar a Court as pro-business and activist 

in the eye of history. The New Deal Court upheld as much as it 

struck down. It upheld FDR’s gold policy. It upheld the Tennessee 

Valley Authority by a vote of 8–1. But we remember the decision 

striking down the NRA and other aspects of the regulatory state. 

So this Court is on very dangerous ground, and just a small 

misstep, even a few more decisions like this, could galvanize the 

populist outcry against Citizens United into much broader discontent with the Court, and the question of how Congress will respond will be just as urgent and serious nowadays as it was in the 

1930s. 

Senator KAUFMAN. Thank you very much, Mr. Chairman. 

Senator SPECTER. Thank you, Senator Kaufman. 

Without objection, a statement from Senator Feinstein will be entered into the record. 

[The prepared statement of Senator Feinstein appears as a submission for the record.] 

Senator SPECTER. Professor Kendall, I ask you the same question 

I asked Jeffrey Rosen, Professor Rosen. How would you square 

Chief Justice Roberts’ confirmation testimony that he would not 

jolt the system with the holding in Citizens United? 

Mr. KENDALL. Senator Specter, I share your concerns about it. 

My organization, which is a progressive legal organization, supported John Roberts, to a great deal of criticism from my progressive friends, based on his testimony, which I found inspiring and 

spoke to me as a lawyer, and I thought as somebody who I had litigated around John Roberts in a case, I had seen him at work. I 

had hoped that he would be the Chief Justice that Jeffrey Rosen 

speaks of him being. 

And so to see a ruling like this, which really does fly in the face 

of so many things that he testified about and so many things that 

he said he would be as Chief Justice, both in his hearings and in 

37 

his interviews, really does throw many of those hopes to the wind. 

And I think it is—— 

Senator SPECTER. Professor Kendall, how about his broad testimony at confirmation about Congressional fact finding and the deference, because only Congress can find the facts, and then his 

dismissive attitude about it in the oral argument in the voting 

rights case? 

Mr. KENDALL. Right. I would like to take issue with what Senator Sessions said, which is this is just a finding about whether it 

is constitutional. The Supreme Court has very clear guideposts as 

to when Congress can limit speech if it requires them to meet strict 

scrutiny, and you have to show a compelling interest. 

What the Court did and one of the things we have not talked 

about much was what the Court did in Citizens United is really 

change the goalposts and change the definition of what is a compelling interest. And so it basically threw out—you know it changed 

on this body what it had to show and said, oh, all of this evidence 

of an appearance of corruption is not good enough, you have to 

show basically quid pro quo corruption. 

And so the Court just basically dismissed all of the fact finding 

and said it was not relevant and said you have not met our burden. 

And it really has changed the goalposts and dismissed the evidence 

that you assembled over years of hearings. 

Senator SPECTER. Professor Kendall, what is the value of our 

confirmation hearings if we rely upon testimony we will not jolt the 

system and it has been exactly the contrary, we are going to be deferential to Congress and it is dismissive? What is the value of the 

confirmation hearing? 

Mr. KENDALL. I think, unfortunately, the confirmation hearing 

has become a kabuki dance in certain respects, and you said this 

before, Senator Specter. It is a very large problem. 

Senator SPECTER. Professor Smith, you say, ‘‘Congress should 

abandon any attempt to circumvent the Citizens United decision.’’ 

What about some limitation, such as the—eight of the Justices, 

with only Justice Thomas being on the other side, said that there 

could be a requirement of disclosure on corporate campaign-related 

expenditures. Any problem with that? 

Mr. SMITH. Senator, no, I think obviously clearly the Court has 

upheld disclosure rules and so on. The point that I was trying to 

make there is that reaction by Congress and by State legislators 

needs to be aimed at the actual problem, and what we see in many 

of the proposals that I have seen just tossed around are proposals 

that seem pretty clearly intended to try to stop corporations from 

using their rights. And as you now, the Court has long held that 

you cannot do indirectly what you cannot do directly. 

So there may be some things like added disclosure. There may 

be something that could be done to make a more refined foreign 

corporation law or, you know, subsidiary law that might be possible. But, again, they should not be subterfuge to just try to stop 

corporations from speaking as they are allowed to do under the decision. 

Senator SPECTER. Professor Rosen, what do you think Congress 

could do consistent with the case? 

38 

Mr. ROSEN. Senator, my view of the First Amendment issue is 

broad, so I think you should do whatever you please. And the fixes 

will be challenged. Disclosure will be challenged. The limits on foreign corporations will be challenged. But I hope that this Court will 

be more restrained in those future cases than it was in Citizens 

United and will uphold whatever fixes you pass. 

Senator SPECTER. What is your optimism based on? 

Mr. ROSEN. In this business, I long got out of the habit of making 

predictions, but I guess since you ask, Senator—it is a serious 

question. I have enough faith in the fact that Chief Justice Roberts 

thinks that he is being incremental and picking and choosing his 

battles that he will not follow this blunderbuss with another one. 

Senator SPECTER. You think he thinks this is incremental, Professor Rosen? 

Mr. ROSEN. Senator, I guess he would not think that this decision is incremental, but he would think that its breadth is required 

by the Constitution, and I would hope that in other cases he would 

be less confident that he knows the right answer than he did in 

this one. 

Senator SPECTER. Professor Kendall, what would you suggest by 

way of legislative changes not inconsistent with the case? 

Mr. KENDALL. We do not, my organization does not support any 

particular legislations. We have not taken a position on them. I 

think that some of the disclosure laws, some of the enhanced limits 

on foreign corporation contributions should be upheld by the Court 

and I think would help—— 

Senator SPECTER. What kind of limits? 

Mr. KENDALL. I do not really have the specifics of the legislation 

in hand enough to speak knowledgeably about that. 

Senator SPECTER. If you have any suggestions, Professor Kendall, 

Professor Rosen, we would be interested in receiving them. 

Mr. ROSEN. Thank you, sir. 

Mr. KENDALL. Thank you, Senator. 

Senator SPECTER. Even your suggestions, Professor Smith, if you 

have any that you would care to share. 

That concludes our hearing. Thank you very much, gentlemen. 

[Whereupon, at 12:10 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record.] 

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